State v. Burcham , 44 N.D. 604 ( 1920 )

Bronson, J.

In the trial court the defendant was convicted of maintaining a common nuisance. He has appealed from the judgment therefor upon the sole ground that the evidence is insufficient to justify the verdict of guilty rendered.

The information charges the defendant and one McDonald with keeping and maintaining a place at Hankinson, between January 5, 1913, and June 1, 1914, where intoxicating, liquors were kept for sale and sold, and where persons resorted for purposes of drinking the same as a beverage, contrary to the statute. The defendant alone was tried.

The evidence discloses that, during the time alleged in the information, the defendant conducted a restaurant with a pool room, called the “Gem Restaurant,” in Hankinson. This place proper consisted of two rooms, — a large room used for a lunch counter and pool room; a smaller room used as a kitchen. Adjacent to these rooms, in the same building, there was another small room where there was maintained a “blind pig.” There is no dispute in the record that in this room called a “blind pig,” during the time alleged, beer was kept for sale, was sold, and was there drunk by purchasing customers, in abundance plenty. The question upon this appeal is, Who conducted, or was responsible for conducting, this “blind pig?” The defendant maintains that there is no evidence, as a matter of law, in the record, which formed any question of fact for the jury, that the defendant either conducted or was responsible for so conducting this place. The record has been examined at length.

The defendant asserts and testifies that McDonald was running the “blind pig,” this same McDonald who later worked for him in the saloon business at Mishua, Minnesota. That although he had leased this entire building, McDonald later got this room from him (just when he does not know), and ran this “blind pig” separate and apart from his rooms. In disposing of the beer in this room, the “modus operandi” was to lay down the money there, and soon, out through a “cuba hole,” so-termed, the beer appeared, the dispenser unseen.

There is some evidence, however, that McDonald was working for the defendant; that he was cooking in the restaurant; that he worked upon or “fixed” the pool tables. The defendant received many shipments of liquor. One witness testified that he ordered beer from the defendant, while in this “blind pig” room, and McDonald got and was paid for the beer. This and other evidence, though meager, was sufficient, in our opinion, to take the case to the jury upon the questions of fact presented. See State v. Rozum, 8 N. D. 548, 558, 80 N. W. 477; State v. Kruse, 19 N. D. 203, 206, 124 N. W. 385; State v. Corn, 76 Kan. 416, 91 Pac. 1067; Scott v. State, 37 N. D. 90, L.R.A. 1917F, 1107, 163 N. W. 813; State v. Wheeler, 38 N. D. 456, 165 N. W. 574. Notoriously, “blind pigs” neither squeal aloud, nor see openly who their keepers are. The judgment is affirmed.

Christianson, Oh. J., and Grace, and Birdzell, JJ., concur.