State v. McKone

Fisk, C. J. The appellant was convicted in the district court of Burleigh county of the crime of importing intoxicating liquors for sale as a beverage contrary to the provisions of § 9763 of the Bevised Codes of 1905, Comp. Laws 1913, § 10600. From a judgment of conviction he has appealed, urging fifty-five specifications of error upon which he relies for a reversal. Most of these specifications relate to rulings on defendant’s objections to the admission of testimony and the refusals of the court to strike out answers to questions asked by the prosecution. A few relate to rulings admitting documentary evidence, and the remainder to the giving of certain instructions and the refusal to instruct as requested. The testimony in the main consists of documentary evidence in the form of bills of lading and receipts for payments of freight purporting to cover various shipments of liquors from points outside of this state to defendant at Bismarck. In addition thereto, the state introduced over defendant’s objection exhibit “A,” being a purported certified copy of the records of the collector of internal revenue at Aberdeen, South Dakota, showing the issuance to appellant of two receipts for special taxes for the business of wholesale and retail liquor dealer, the dates of payment being stated as June 14, 1913, and July 17, 1913, both taking effect from July 1, 1913. The prosecution of necessity relied largely upon the receipts and bills of lading aforesaid and the inferences to be drawn therefrom. It therefore follows that the question as to the correctness of the court’s rulings with reference to such exhibits is of vital importance and consequently deserving of serious consideration. With these observations we proceed to the consideration of such of the specifications of error as we deem worthy of notice. Appellant’s first specification is not argued, and is therefore deemed abandoned. The second specification challenges the correctness of the court’s rulings on the following question asked the witness McDonald, agent of the Northern Pacific Bailway. Company at Bismarck, with [552] reference to exhibit 1: Q. “It shows the orginal signature of the party to whom the freight was delivered ?” This exhibit purports on its face to be a receipt for freight consisting of twenty boxes of bottled liquor delivered November 17, 1913, by the Northern Pacific Railway Company to J. R. MeKone as consignee. Standing alone such ruling might have constituted prejudicial error upon some of the grounds urged in the objection thereto, but such errors, if any, are clearly cured in the subsequent testimony of the witness McGattigan, who was assistant cashier of the Northern Pacific Railway Company at its freight house in Bismarck on the date of the transaction, and who positively identified defendant’s signature thereon as genuine. Appellant has grouped defendant’s specifications, Nos. 1 to 22, both inclusive and Nos. 33 to 40, both inclusive, and argued them together. They relate in the main to the rulings of the court denying the objections of the defendant to the admission of testimony. We have carefully considered these specifications of error, but find them without substantial merit. They are too numerous to mention in detail. Some of them are not wholly without merit when considered without reference to other portions of the record; but in the light of the entire record we have no hesitancy in adjudging, as we do, that the defendant’s rights were amply protected at all stages of the trial, and that he has no just cause for complaint. In fact, the learned trial court is to be commended for its eminently fair and impartial rulings throughout the trial. We feel safe in saying that any errors which may have been committed against the defendant were of a nonprejudicial nature. Our basis for this assertion may be summed up by stating that the undisputed evidence in the form of documentary proof consisting of bills of lading and receipts conclusively establishes defendant’s guilt beyond all doubt.' In the light of such evidence the jury could not do otherwise than find the defendant guilty as charged, for such evidence disclosed, without dispute, that on the date charged and for a considerable time prior thereto defendant received from points in the state of Minnesota, at very frequent periods, large consignments of beer and other intoxicating liquors, for which he receipted and paid the freight either personally or through his agents. These facts are established beyond cavil by witnesses and documentary proof of the most conclusive character. In view of the frequency of such shipments and the size of them, it would [553] be a mockery of justice to say either that defendant was not instrumental in directly causing such importations to be made, or that they were made for legitimate purposes, for the record discloses that on November 11, 1913, he received and receipted for 20 boxes of bottled •liquor; 1 barrel of bottled liquor consisting of 200 pints, 5 casks of beer from the Minneapolis Brewing Company, and 5 casks of large bottled beer from Jacob Schmidt Brewing Company, and four days prior thereto he received and receipted for 5 casks of beer from the latter company. In the month of October preceding, there was shipped to him at Bismarck and receipted for, 9 barrels of bulk whisky, 1 barrel of bottled liquor, 1 barrel of brandy, and 40 casks of beer. The foregoing does not embrace all the shipments disclosed by the proof, but they are sufficient to show the magnitude of the illegitimate traffic in intoxicating liquors conducted by the defendant. Further comment is uncalled for. But appellant’s counsel contends that proof of shipments received at times other than November 17th, the date charged in the information, was improperly received. We cannot sustain such contention, as such shipments were clearly admissible as throwing light on the vital issue, the proof of which rested on inference alone, as to defendant’s purpose in importing the liquors on the 17th. But conceding for the sake of the argument that such testimony was inadmissible, its introduction was nonprejudicial, as without it the verdict must have been the same. This is, we think, a proper case for the application of the statutory rule which requires this court on appeals in criminal cases to give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. See § 11013, Comp. Laws 1913, also State v. Tolley, 23 N. D. 284, 136 N. W. 784. It is impossible for anyone to entertain a doubt regarding defendant’s illegal intent in importing the large quantities of liquor on the date charged. Nor do we think there is any merit in appellant’s specifications challenging the rulings which permitted the witness McDonald to explain the meaning of certain figures, designations, abbreviations, or letters appearing on the exhibits aforesaid. These were notations made in the regular course of business of the common carrier, and not familiar to-persons outside of the railway service, and it is elementary that they were subject to explanation by those possessing expert knowledge thereof. Error is sought to be predicated on the ruling permitting the intro [554] duction of exhibit “A,” a certified copy of the record of the collector of internal revenue for the district of North and South Dakota. All that need be said in answer thereto is that all the grounds here urged against such ruling were fully considered and disposed of contrary to appellant’s contention in the case of State v. Kilmer, ante, 442, 153 N. W. 1089, just decided by this court. We may further add, however, that the only purpose of such testimony was to show defendant’s intent in importing the liquors, and even if, for any reason, such ruling was error, it could not have been prejudicial, for without such testimony the verdict must have been the same. Appellant complains of that portion of the instructions to the jury reading as follows: “And if the goods were shipped into the state of North Dakota, consigned to any person, who pays the freight thereon, and receives the same, he may be deemed to have imported the same within the meaning of that term.” We see no error in such instruction. It, in effect, merely tells the jury that they may infer from such acts that defendant imported the liquors. They were not told that they should draw such inference. The instruction was clearly proper. White v. State, 153 Ind. 689, 54 N. E. 763. Moreover, the state of the proof was such that no other inference or conclusion was possible. It would be ridiculous as well as contrary to all human experience to say that all these large and numerous shipments of liquor could have been made to defendant without his knowledge and procurement. We have considered all the specifications of error relating to the instructions, as well as all others, and we find no substantial merit therein. We are entirely convinced from the record that defendant was accorded a fair trial, free from errors of a substantial and prejudicial nature, and that the verdict was not only just and proper, but was the only verdict that the jury could have properly rendered. Entertaining these views, it is, under the statute above cited, our plain duty to affirm the judgment, and we accordingly do so.