State v. Dahms

FiSK, J. Appellant was convicted in tbe lower court of tbe crime of keeping and maintaining a liquor nuisance, and was sentenced to imprisonment in tbe county jail for ninety days, and to pay a fine, including costs, of $600. He has appealed from tbe judgment. Prior to tbe pronouncement of judgment, defendant moved, both in arrest of judgment and for a new trial, upon numerous grounds, among which are alleged insufficiency of tbe evidence to warrant tbe verdict, and alleged erroneous instructions to tbe jury prejudicial to tbe defendant. These are tbe only grounds which we need notice. It is conceded on tbe part of the state’s counsel, as we understand them, that there is no competent testimony in tbe case to warrant a finding that defendant was a principal in keeping and maintaining tbe nuisance, their contention being that be merely aided and abetted another in so doing, and this appears to have been tbe view of tbe learned trial judge, wbo instructed tbe jury as follows: “Under tbe statutes of North Dakota there is no distinction between tbe principal and accessories to a crime, and I will read to you that particular section: ‘All persons concerned in tbe commission of a crime, whether it is a felony or a misdemeanor, and whether they directly commit the act constituting tbe offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals in any crime so committed.’ So you will see, gentlemen of tbe jury, that all persons stand on tbe same footing, wbo actually commit the crime, if any, or wbo aid and abet in tbe commission of tbe samer “Now, tbe questions for you, gentlemen of tbe jury, to determine in — 55 — tbis case, are whether or not there was a place kept where intoxicating liquors were sold as a beverage, or where persons were permitted to congregate for the purpose of drinking intoxicating liquors, or where intoxicating liquors were kept for sale. First, to determine whether or not there has been a place kept and maintained, second, who kept and maintained such place; and, third, whether or not this defendant kept and maintained the place, or aided and abetted in the keeping and maintaining of such a place. “If you find from the facts in this case that at the stockyards near Taylor, in this county and state, there was a nuisance kept and maintained on the 4th of duly, 1912, and that this defendant, while not actually keeping the place, yet aided and abetted in the keeping of the same, then you should find the defendant guilty as charged in the information; but unless the state has proven each of these facts to your satisfaction, beyond a reasonable doubt, then the defendant is entitled to be acquitted. “Now, gentlemen, I think this covers about all the law for you to determine in this case as to whether or not, under the statutes of thjs state, this defendant has committed the offense with which he stands charged. Whether or not he committed the crime, or aided and abetted in its commission, makes no difference, he is equally guilty. The person who actually commits the crime, and the person who aids and abets in the commission of the crime, are jointly guilty of the offense.” Without quoting from the testimony it will suffice to merely state that it is wholly insufficient to sustain the conviction except upon the theory that defendant aided and abetted in the commission of such crime. There is concededly a total lack of proof that defendant had any proprietary interest in the keeping or the maintaining of the nuisance, or that he was, even for an instant, in charge or control thereof; nor was he instrumental in the least in directly aiding or assisting in the actual sales of liquor on the premises constituting such nuisance. If, however, the giving of the instruction above quoted was proper as a matter of law, then, for the purposes of this appeal, it may be conceded that the evidence was such as to warrant a conviction thereunder. The state relies, in support of the correctness of the instruction, upon the following authorities: State v. Rozum, 8 N. D. 548, 80 N. W. 477; State v. Ekanger, 8 N. D. 559, 80 N. W. 482; State v. Herselus, 86 — 56 — Iowa, 214, 53 N. W. 105; State v. Snyder, 108 Iowa, 205, 78 N. W. 807; Webster v. State, 110 Tenn. 491, 82 S. W. 179; Phillips v. State, 95 Ga. 478, 20 S. E. 270; State v. Lord, 8 Kan. App. 257, 55 Pac. 503; Buchanan v. State, 4 Okla. Crim. Rep. 645, 36 L.R.A.(N.S.) 83, 112 Pac. 32; McLain v. State, 43 Tex. Crim. Rep. 213, 64 S. W. 865. A brief analysis of these cases will, we think, disclose that they are not in point, and do not support the state’s contention. In the Rosum Case the court inferentially held against the contention of the state in the case at bar by placing its decision upon the ground that the husband, who was prosecuted for keeping and maintaining a common nuisance, was guilty of keeping and maintaining such nuisance, because of the fact that he was the head of the family, and knowingly suffered intoxicating liquors to be kept for sale or sold as a beverage in his home, and knowingly suffered persons to resort thereto for the purpose of drinking intoxicating liquors contrary to law. By placing the decision upon the ground that by his conduct he kept and maintained the nuisance, instead of upon the ground that he aided and abetted his wife in keeping and maintaining the same, it is apparent that the court did not consider the fact that he aided and abetted his wife in the unlawful enterprise, of any controlling importance. In the Ekanger Oase the court on this point merely adheres to its prior decision in the Rosum Oase. The Iowa cases are readily distinguishable from the case at bar, on the ground that the Iowa statute differs from that in this state. Our statute (§ 10,117, Oomp. Laws 1913, Rev. Codes 1905, § 9373) provides : “All places where intoxicating liquors are sold, bartered, or given away, in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this chapter, are hereby declared to be common nuisances . . . and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance.”' This section has been construed in numerous cases in this court, and it is firmly settled that the offense therein defined consists of the keeping and maintaining of the place. State v. Dellaire, 4 N. D. 312, 60 N. W. 988; State v. Thoemke, 11 N. D. 386, 92 N. W. 480; State — 57 — v. McGillic, 25 N. D. 27, 141 N. W. 82; State v. Kruse, 19 N. D. 203, 124 N. W. 385. In tbe opinion by Mr. Justice Carmody in tbe latter case it was said: “Tbe selling of intoxicating liquors contrary to tbe provisions of tbis act does not constitute tbe offense, nor does tbe keeping of intoxicating, liquors for sale, contrary to tbe provisions of tbis act constitute tbe offense. Neither is tbe offense committed by permitting persons to resort to tbe place for tbe purpose of drinking intoxicating liquors as a beverage. They are evidences of tbe offense. It is keeping tbe place where these things, or some of them, are done, that constitutes tbe offense. Proof of keeping by tbe defendant, and that any one of tbe prohibited acts was done by tbe defendant in such place during such keeping, would make tbe offense complete.” In tbe more recent case of State v. McGillic, this court, in speaking of tbe object and purpose of tbe above section, says: “That law is aimed primarily at a place wherein is permitted tbe commission of acts viola-tive of tbe prohibition law, tbe statute condemning tbe place of tbe violations by declaring it to be a common nuisance. Tbe person in control or charge, whether temporarily or continuously, is tbe keeper of such nuisance and tbe person punishable for its maintenance. . . . Under tbe law prior to chapter 193 [Laws 1907] tbe owner might lease to a tenant, or permit an occupant to use, control, and occupy a place wherein a nuisance might be maintained by such lessee, occupant, or person, in control, without tbe owner being criminally liable, unless tbe state could prove such facts as would render tbe owner liable as a joint principal in tbe unlawful business.” Tbis would seem to clearly negative tbe idea that a person who merely aids or abets another in tbe maintenance of a liquor nuisance can be adjudged guilty of violating said statute. It is, we think, entirely clear, under our statute, that a person cannot be guilty of maintaining a common nuisance unless it be shown that be kept or maintained tbe place. Even tbe fact that he may have aided and assisted tbe proprietor of tbe place in dispensing liquors contrary to law is not enough to fasten guilt upon him. Such a person, no doubt, would be guilty of tbe offense of selling intoxicating liquors contrary to law. Although be may as clerk or servant of tbe proprietor have aided and assisted him in conducting tbe place by making illegal sales of liquors, or in keeping such liquors for sale, and inducing persons to resort — 58 — to the place for the purpose of drinking the same as a beverage, he cannot be convicted of keeping and maintaining the nuisance unless it appears that during the time the same was kept and maintained he was in sole charge and control for some period of time. In the latter case he would be deemed the keeper, and would be guilty. Such we believe to be practically the universal holdings of the courts under similar statutes. Com. v. Galligan, 144 Mass. 171, 10 N. E. 778; Com. v. Murphy, 145 Mass. 250, 13 N. E. 892; Plunkett v. State, 69 Ind. 68; State v. Gravelin, 16 R. I. 407, 16 Atl. 914; Com. v. Churchill, 136 Mass. 148; Com. v. Burns, 167 Mass. 374, 45 N. E. 755. The supreme judicial court of Massachusetts in the Churchill Case said: “The distinction between acts which amount to maintaining the nuisance, and those which do not, is one of degree. We do not think that the misdemeanor of unlawfully selling, committed by a servant, can be said as a matter of law to amount to maintaining a nuisance, unless he has assumed a temporary control of the premises, or in some other way emerged from his subordinate position to aid directly in maintaining it.” In the Galligan Case that court said: “It may not be necessary, in. ■order to convict a defendant who is an agent of the proprietor, that he should have had the sole charge and control of the tenement, but the instruction given was that, if one of the defendants was the sole proprietor, .and the other was present, aiding and abetting him In acts of proprietorship and control, both might be found guilty.’ We think that this instruction was too indefinite, and may have misled the jury; and for this reason the exceptions are sustained. The defendants could be jointly found guilty only by proof that they jointly kept or maintained the nuisance charged. If one was sole proprietor, and the other only kept ■or maintained the nuisance as his servant, under his direct personal supervision, the latter could not be convicted. If, however, the servant, in carrying on the business of his employer, and in the absence of his employer, was authorized by him to make illegal sales of intoxicating liquors, and made such sales, both could be found guilty of maintaining •the nuisance.” The Indiana court in the Plunkett Case held to the same rule as did the court in the other cases cited. The gist of these holdings, as well as those of this court above cited, — 59 — is to tbe effect that there is no such thing as aiding and abetting another in the control of his property, for otherwise the opinions in these cases would have been written differently, and convictions of mere clerks and servants of the proprietors would have been sustained upon the theory that they aided and abetted such proprietor in the maintenance of the nuisance. The cases cited by respondent from the state of Iowa are based upon a statute radically different from that in this state. The Iowa statute does not declare that the keeping or maintaining of a place for the illegal traffic shall alone constitute a nuisance, but it goes beyond this, and declares that “whoever shall erect, establish, continue, or use any building, erection, or place for any purposes herein prohibited, is guilty of a nuisance; . . . and the building, erection, or place, or the ground itself in or upon which such unlawful manufacture or sale or keeping with intent to sell, use, or give away said liquors, is carried on or continued or exists, and the furniture, fixtures, vessels, and contents, are also declared a nuisance.” Iowa Code 1897, § 2384. And § 2382 of same Code provides: -“No one, by himself, clerk, servant, employee, or agent, shall, for himself, or any person else, directly or indirectly, or upon any pretense or by any device, manufacture, sell, exchange, barter, dispense, give in consideration of the purchase of any property or of any service or in evasion of the statute, or keep for sale, any intoxicating liquor, which term shall be construed to mean alcohol, ale, wine, beer, spirituous, vinous, and malt liquor, and all intoxicating liquor whatever, except as provided in this chapter, or own, keep or be in any way concerned, engaged, or employed in owning or keeping any intoxicating liquor with intent to violate any provision of this chapter, or authorize or permit the same to be done; and any clerk, servant, employee, or agent engaged or aiding in any violation of this chapter, shall be charged and convicted as principal/’ It will thus be seen that such statute not only penalizes the person who keeps and maintains the place, but also him who uses such place for the illegal purposes forbidden. This is made plain by a perusal of the opinions in the Herselus and Snyder Cases, as well as the earlier case of State v. Stucker, 33 Iowa, 395, in each of which cases the defendant was-held upon the ground that he tised the place for the illegal enterprise. Both Maine and Texas have statutes similar to Iowa, which accounts — 60 — for the decisions in State v. Sullivan, 83 Me. 417, 22 Atl. 381, and Tardiff v. State, 23 Tex. 169. The cases cited from Tennessee and Georgia are clearly distinguishable from the case at bar, for the reason that they were controlled by facts differing from those in this case. The convictions in those cases were sustained upon the ground that the defendants , were principals in the crime, and not that they aided and abetted others in their commission. The case cited from Oklahoma is not in point. It involved merely the crime of making an unlawful sale of liquors, and not that of maintaining a liquor nuisance. The cáse of State v. Lord, cited by respondent, was decided by the intermediate appellate court of Kansas under a statute like that in North Dakota, and in a portion of the opinion the contention of respondent seems to be supported. An examination of such opinion discloses, however, that what was said on the point here under consideration was unnecessary to the decision; for in an earlier portion of the opinion it was held that the evidence disclosed that Lord was a ¡keeper of the place as a principal, having a proprietary interest therein. The portion wherein it is said, “A defendant may be charged, tried, and convicted as the keeper of a place, a common nuisance, even though he only assisted in keeping the same,” was mere obiter, and entitled to but little weight. It is also significant that shortly thereafter the legislature amended the Kansas statute so as to read “every person who maintains or assists in maintaining such common nuisance shall be guilty,” etc., thereby conforming the statute to the rule thus through a'mere dictum, announced by the appellate court in State v. Lord. See § 4387, Kansas Statutes 1909. Even if it be conceded, contrary to the concession of respondent’s counsel, that there was evidence sufficient to warrant the jury in finding that defendant was a joint principal with others in keeping such nuisance, still a new trial must be directed for the very obvious reason that the court erroneously instructed the jury to the effect that they might convict even though they found that defendant did not keep such nuisance as one of the principals. According to the positive testimony of one Wallace, a witness for the. state, and who concededly conducted the nuisance, and which testimony the jury had a right to believe, this defendant had nothing whatsoever to do with the keeping and maintenance — 61 — of the nuisance, and bad no interest therein. Yet in the face of such testimony the court explicitly charged the jury to the effect that it w7as their duty to convict, although they should find that defendant did not commit the crime as a principal offender, but merely aided and abetted, or, not being present, advised and encouraged, its commission. The jury evidently based its verdict upon the' ground that defendant did not directly commit the offense, but merely aided and abetted Wallace in the commission thereof, for the record discloses that after deliberating for sometime they returned into court for further instructions upon the question of aiding and abetting, whereupon the following colloquy took place: Juror: There is some question on the terms “aiding and abetting.” The Court: Aiding and abetting practically means the same thing, assisting, counseling, or advising. TJnder the law, aiding, abetting, or assisting, those three words are synonymous and mean the same thing. Anyone who in any way aids or assists in the commission of a crime, why then he is an aider and abetter under the law. The Juror: Would this necessarily need to be previous to the 4th of July when the crime was committed ? The Court: It wouldn’t have to be. Either before or at the time of the commission of the offense. Thereafter the verdict was returned, finding defendant guilty and recommending leniency. It is fair to conclude, therefore, that the jury, at least, may have found that defendant’s only connection with the crime consisted in his acts of purchasing the lumber for Wallace and bringing him a lunch, etc. Surely no lawyer would contend that such aiding and abetting would justify a conviction under the law, and yet the jury may, and probably did, understand the instructions that way, as not only justifying but requiring them to convict if they found beyond a reasonable doubt that defendant thus aided and assisted, or advised and counseled, Wallace with reference to his unlawful acts. It is no answer to this to say that the jury, nevertheless, was warranted under the circumstantial evidence in finding that defendant was the prime mover in such unlawful enterprise, and in fact was a principal in such crime, and partici — 62 — pated in tbe fruits thereof; for tbe jury bad a right to and may have viewed tbe 'evidence otherwise. Such circumstantial evidence might not, in tbe judgment of tbe twelve jurors, have outweighed tbe positive testimony of tbe state’s witness, Wallace. We may also add that such recommendation in tbe verdict is hardly consistent with a finding by tbe jury that defendant was guilty as a principal, or otherwise than in a mere technical way, as tbe jury viewed it, by reason of having, to some degree, aided and assisted, or advised and counseled, Wallace in and about such unlawful venture. It follows that tbe giving of tbe instructions complained of constituted prejudicial error, for which tbe judgment appealed from must be reversed and a new trial ordered.