State v. Hall

149 N.W. 970, 28 N.D. 649, 1914 N.D. LEXIS 141

• Court: North Dakota Supreme Court
• Decided: December 3, 1914
• Status: Published

Opinion

Per Curiam.

Appellant was convicted of the offense of keeping and maintaining a common nuisance, and has appealed from the judgment of conviction. His fourth assignment of error challenges that por-ion of the instructions to the jury as follows: “So if, in this particular case, gentlemen of the jury, you should first determine to your satisfaction, beyond a reasonable doubt, that a common nuisance was in fact kept at the time and place charged in the information, and you should further be satisfied, beyond a reasonable doubt, that this defendant in fact did keep the same, or aid or assist the owner or proprietor or keeper thereof' in keeping it in any way, whether ■by acting for him, in the sale of intoxicating liquors thereon, or otherwise, then you should find this defendant guilty, regardless of his particular interest in the business there being carried on.”

Following the recent decision of this court in State v. Dahms, 29 N. D. 51, 149 N. W. 965, which is controlling of the case at bar, such instruction constituted prejudicial error, necessitating a new trial.

We deem it unnecessary to consider the other assignments of error, as it does not appear that the alleged errors there complained of will arise on another trial.

Judgment reversed, and the cause remanded for a new trial.

Burke, J.: I concur in this opinion only because it is controlled by State v. Dahms.