STATE OF NORTH DAKOTA v. C. B. WHEELER. Common nuisance of place of crime specific property (165 N. W. 574.) information - keeping and maintaining sufficiency identified as in county capable of · lien on definite description required. · rule different - 1. In a prosecution against a person for keeping and maintaining a common nuisance, the information contains sufficient allegation as to the place of the commission of the crime if it describes the place where such common nuisance was maintained with such certainty that it can be identified, and alleges the commission of such crime to be within the county. The rule would be different if there be a search or seizure of certain property, or if the prosecution were one for the abatement or restraining of the commission or continuance of a nuisance carried on at a certain location, or where it is the purpose of the action to acquire a lien against specific property. In all such cases there must be a definite description of the property. Common nuisance competent evidence of keeping — sales of intoxicating liquors in place by defendant by his employees - knowledge of defendant jury — question for. 2. Where one is charged in an information with the keeping and maintaining of a common nuisance at a certain building or place, and the prosecution is against the person only, and is intended to secure the conviction and punishment of such person only, evidence of sales of intoxicating liquors by the defendant, and evidence of sales of intoxicating liquors by defendant's employees, even though the sale of the intoxicating liquors by the employees was not shown to have been made with the knowledge of the defendant, is all competent evidence tending to show that such place or building is one where intoxicating liquors are kept for sale, barter, or gift in violation of law. Whether the defendant had knowledge of the sales of intoxicating liquors at such building or place by his employees is a question of fact for the jury. Opinion filed November 27, 1917. Appeal from the District Court of Williams County, Honorable Frank E. Fisk, Judge. Affirmed. NOTE.-Criminal responsibility for sale of intoxicating liquor by partner, servant, or agent is the subject of a comprehensive series of notes in 41 L.R.A. 660; 16 L.R.A. (N.S.) 786; 20 L.R.A. (N.S.) 321; and 33 L.R,A. (N.S.) 419, in which cases will be found collated on the question of the necessity of authority, when the same can be implied, and the liability for selling without authority. Barnett & Richardson and Murphy & Metzger, for appellant. In a prosecution for keeping and maintaining a common nuisance, where the state unnecessarily charges a more particular description than an allegation of its commission within the county, the particular description given must be proved. Such specific description narrows the scope of the proof. State v. O'Neal, 19 N. D. 426, 124 N. W. 68; State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974; State v. Rozum, 8 N. D. 548, 80 N. W. 477. The state must also prove that defendant had knowledge of the unlawful sales of liquors by his employees, before he can be convicted.. The use of the word "permit" in the statute implies that defendant. must have had knowledge. Larson v. Christianson, 14 N. D. 476, 106 N. W. 51; State v. McGillic, 25 N. D. 27, 141 N. W. 82. "If possession of a building is obtained for a lawful purpose, and then without the knowledge or consent (permission) of the owner, the place is used for illegal purposes, such premises will not be adjudged a nuisance against the owner, unless after knowledge or notice of its unlawful use, he still permits the same." State ex rel. Kelly v. Nelson, 13 N. D. 122, 99 N. W. 1077; State v. Rozum, 8 N. D. 548, 80 N. W. 477; Partridge v. State, 88 Ark. 267, 20 L.R.A. (N.S.) 321, 129 Am. St. Rep. 100, 114 S. W. 215; 28 Cyc. 207 (b); State v. Lesh, 27 N. D. 165, 145 N. W. 829. Where a judge in his charge to the jury makes a serious and prejudicial mistake, the fact that he correctly states the law in another part of his charge is not sufficient to remove the ambiguity and prejudice resulting from the other erroneous instructions. State v. Kruse, 19 N. D. 203, 124 N. W. 385. The motion for a new trial was made and decided before judgment was entered, and is a part of the record, and therefore properly before the court. Rev. Codes, § 7842. Wm. Langer, Attorney General, and William G. Owens, State's Attorney, for respondent. An information charging an offense may be amended at any time after plea, or during the trial, as to any matter of mere form, in the discretion of the court, when the same can be done without prejudice to the rights of the defendant. Comp. Laws 1913, § 10,633. By the amendment here made, the state placed a limit upon its proof, which, instead of being prejudicial to defendant, created a greater burden upon the state. State v. Kruse, 19 N. D. 203, 124 N. W. 385; State v. O'Neal, 19 N. D. 426, 124 N. W. 68; State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974. The owner of property is personally responsible and answerable for all the acts of his employees, and "he is liable for particular sales although made by his servants in his absence." People v. Sharrar, 164 Mich. 267, 127 N. W. 801, 130 N. W. 693; People v. Damm, 183 Mich. 554, 149 N. W. 1002; Black, Intoxicating Liquors, § 510. "A person is sufficiently proved to be such a nuisance keeper when once control, even though temporary, of the place and unlawful business, is shown." And it is no defense that the saloon was opened by the keeper's bartender without authority. State v. Grant, 20 S. D. 164, 105 N. W. 97, 11 Ann. Cas. 1017; Rev. Codes 1905, § 9373, Comp. Laws 1913, $ 10,117; State v. McGillic, 25 N. D. 34, 141 N. W. 82. There was no error committed by the court in its instructions to the jury, and if any misleading statement was made it was completely corrected by further instructions. The charge should be read and considered as a whole. State v. Kruse, 19 N. D. 203, 124 N. W. 385; State v. Lesh, 27 N. D. 165, 145 N. W. 829. GRACE, J. This action is one prosecuted by the state of North Dakota against C. B. Wheeler on information filed in the district court of Williams county, North Dakota, which information charged the defendant with keeping and maintaining a common nuisance on the 7th day of January, 1917, and during the regular December, 1916, term of the district court in and for said Williams county, in that the defendant kept and maintained that place known as "Wheeler's Feed Barn," located on lots 7 and 8, Le Dosquet's addition to the city of Williston. The information was filed by the order of the court of said county on the 15th day of January, 1917. The case was tried to the court and a jury on the 18th day of January, 1917, which term was the regular December, 1916, term of such court. The jury by their verdict found the defendant guilty as charged in the information, and recommended to the court that the jail sentence be suspended. Defendant in his appeal to this court has assigned eighteen errors. Regarding the first assignment of error, the court did not err in overruling the objection to the question as to the location of the barn. It was perfectly proper to prove the location of the barn in question. The testimony sought to be excluded in the second assignment of error was proper testimony to admit. The prosecution was for keeping and maintaining a common nuisance. Evidence of purchases of intoxicating liquors upon the premises, whether made from the defendant in person or from the servants or employees of such defendant, was competent testimony. The third error assigned relates to the amendment of the information by adding thereto the number of the block in which such lots were located upon which such barn was situated. Such an amendment was a matter of form only. The information would have been perfectly good as to substance without any reference to either the lots or blocks, so long as the location of the place of the nuisance was within the county, and the place of maintaining the nuisance would be identified and proved by competent testimony. The rights of the defendant would not be prejudiced by such amendment; and the amendment, being one of form, was permitted under § 10,663, Compiled Laws of 1913. The prosecution in this case is against the person only. The state does not attempt by this proceeding to obtain an order of abatement of the nuisance, or establish a lien against the premises in which the nuisance existed and was maintained; hence, the information would have been good had there been no description of the lots or block, but merely a description of the building by which it could be recognized or identified by competent testimony. State v. Kruse, 19 N. D. 203, 124 N. W. 385. In this case the information was amended so as to disclose a fuller description of the premises, and there was competent testimony offered tending to show the maintaining of a nuisance at the building on lots 7 and 8, block 8. The testimony of the defendant establishes the location of the feed barn in accordance with the more particular description set forth in the information. We are of the opinion, however, that the particular description of the premises in a case such as the one at bar may be considered as mere surplusage, in view of the law that, in prosecutions against the person only, it is a sufficient allegation as to the place of the commission of the crime where the information alleges its commission within the county. The rule would be different if there be a search or seizure of certain property, or the abatement or restraining of a commission for the continuance of a nuisance carried on at a certain location, or where it is the purpose of the action to acquire a lien against specific property. In all such cases there must be a definite description of the property. In all other cases where the prosecution is against the person only, and where the only question presented is the personal guilt of the defendant, the more particular description of the place of the commission of the offense is unnecessary, except the information must show it is within the county. The legal requirements of an information or indictment of a person accused of the commission of a crime are contained in § 10,693, Compiled Laws of 1913. The only portion of such section necessary for us to consider is subdivisions 4 and 5 thereof, which are as follows: "That the offense was committed at some place within the jurisdiction of the court, except when the act, though done without the local jurisdiction of the county or judicial subdivision, is triable therein." "That the offense was committed at some time prior to the time of the presenting of the information or of the finding of the indictment.” Clearly, then, it must appear that an information is sufficient as to place when the prosecution is against the person, if it contains an allegation that the crime charged to have been committed, was committed within the county. If the information contains a more specific description of the place of the commission of the crime, and it is made to appear by the defendant that he had been misled or deceived by the more particular description, or his rights had in any manner been prejudiced, he may be entitled to a continuance of the trial, or, in the event of conviction, he might be entitled to a new trial. However this. may be, we are clear that any testimony which shows or tends to show the commission of a crime by the accused within the county in which the crime was committed, is competent and admissible testimony in all cases where the prosecution is only against the person. The defendant in the case at bar predicates error upon the admission of the testimony of those witnesses who testified they purchased intoxicating liquors from Frank Brown and Harry Wheeler, who were employees of the defendant, on the ground that it is not shown that the |