Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-06-02
Supreme Court


State of North Dakota, Plaintiff and
Respondent, VS.. Ans Hermansn, De-
PENDANT and Appellant.
% Defendant entered pleas of
guilty to the maintaining of nuisances
under the city ordinances If Minot,
which ordinances provided that the
seller of intoxicating liquor as a
beverage or the keeper of a resort
wherein people were allowed to drink
intoxicating liquors, was maintaining
Ia nuisance and prescribing a penalty
therefor. HELD on proper foundation
laid such convictions could be shown
and were admissible as admissions of
guilt in this action prosecuted for
maintaing a common nuisance under
the statute and covering the entire
time in which the transactions under
the ordinances were charged to have
occurred.
(2) Such admission s by pleas Of
guilty may be shown by oral testi-
mony of the magistrates or other per-
sons present, and also, on proper
foundation laid therefor, by the docket
duty by the magistrates.
(syllabus by the Court
Appeal from the County Court of in.
creased Jurisdiction for Ward County,
N. Davis, J.
AFFIRMED.
Opinion by Goss, J. Hon. w. J.
Kneeshaw, District Judge of the
Seventh Judicial District, sat by re-
quest.
Palda, Aaker & Greene, attorneys
for appellant.
d. L. Nash, States Attorney, and
Andrew Miller, Attorney General for
respondent.
State of North Dakota, Plaintiff and
Respondent, vs.. WiiAam Kelly, De-
PENDANT and Appellant.
% Under an Information charging
the keeping and maintaining of a
common nuisance at a place described
as within the city of Minot, in Ward
county, North Dakota, proof of the
maintenance of such nuisance at a
place without the limits of said city
gives rise to fatal variance be-
tween the Information and the proof.
(2) 1t is unnecessary in prosecu-
tons for keeping and maintaining a
common nuisance that the informa-
ton particularly designate the place
of the commission of the crime more
than to charge that the same was
committed within the county and state
wherein the prosecution is had; but
where the information designates the
particular location Of the place charg
ed to be kept and maintained as
common nuisance. the state. to war
rant conviction, must prove the crime
to have been convicted at the place so
particularly described in the informa-
ton. as proof of the commission. of
the crime of keeping and maintaining
a common nuisance at place other
than that so designated with par
ticularity in the information, is proof
of the commission of separate in
dependent crime other than the one
charged in the information.
81 The presumption declared by
Section 1888, Revised Codes Of 1905,
as arising from the finding of intoxi-
eating liquor in the possession of a
person charged with said crime, is to
be considered by the jury as cir
cumstance or element of the case from
which, considered with all the evil
dence in the case, the jury determine
their verdict.
az An instruction as to much pre-
sumption. giving the same in the
words of the statute and following
with the instruction that such pre-
sumptive evidence may be considered
by you as as competent and sufficient
upon which to base a conviction pro-
vided the jury is satisfied beyond a
reasonable doubt from all the evil
dence in the case that the defendant
is guilty as charged" properly defines
the effect the jury should give such