Defendant was convicted of the crime of bootlegging. In the information she was charged with selling "one pint of alcohol." She made a motion in arrest of judgment and, in the alternative, for a new trial. The motion was denied and defendant appeals from the order denying the motion and from the judgment.
The testimony of the state's witnesses tends to show that on June 12, 1923, two prohibition agents met the defendant apparently by appointment, in a room in a hotel in the city of Fargo, and purchased from her a pint bottle containing a certain liquid. The bottle was delivered by the agents to one Cruden, a prohibition official, who kept it until the preliminary hearing before the magistrate. The bottle was alleged to have been sold to one Carter in the presence of Wright, another prohibition agent. Both officials testify, in substance, that the defendant came to their room in the hotel about 7:30 in the evening, delivered the bottle to Carter, and received $5 in payment. The state called one Hallenberg, druggist, as an expert witness. He testified that he had analyzed the contents of the bottle and found 94 per cent alcohol, *Page 758 3 per cent water and 3 per cent acetone. The expert testified, in general, that the liquid was unfit for beverage purposes because of the presence of acetone. He says that the liquid is "not alcohol," or "not straight alcohol," but "is a mixture — alcohol," or a "compound mixture." Interrogated by the court, the witness testified: "It is an alcohol mixture, I can hardly describe it any other way."
While the defendant assigns several errors, the principal contention is that the state failed to prove that the compound or mixture was fit for beverage purposes. It is urged by the defendant that the mixture is not "alcohol," within the meaning of that term as used in § 1, chapter 268, Sess. Laws 1923; that it is a compound within the second class enumerated in that section and following the clause "in addition thereto;" that, therefore, it was the duty of the state to prove, not only an alcoholic content of 1/2 of 1 per cent or more, but also that the mixture was fit for beverage purposes, within the rule laid down by this court in State v. Schuck, 51 N.D. 875, 201 N.W. 342. The contention of the state, on the other hand, is, and the conclusion of the trial court was, that the liquid is alcohol, within the statute; being alcohol, that its fitness as a beverage and its intoxicating quality are presumed. The court did not instruct the jury upon this precise question, merely saying, in substance that if they found, beyond a reasonable doubt, that the defendant sold alcohol to the officers, as alleged in the information she was guilty of bootlegging.
We have examined the errors assigned and find them without merit. They need not be noticed further. The only question is whether there is evidence sufficient to support the verdict in view of the specific offense charged, and in the light of the testimony of the State's expert that the liquid sold was an alcohol mixture, or compound.
We have summarized the testimony of the expert who testified for the state as to the chemical analysis of the liquid sold by the defendant. It was upon this testimony that the state relied, when the case was first presented in this court. In the argument upon rehearing, counsel for the state concedes that the state did not refer to or rely on the testimony hereinafter mentioned when the case was first presented in this court. The testimony upon which reliance is now principally placed to sustain the conviction is very brief and somewhat general. Prohibition agent Wright testified that he opened the bottle after Carter purchased *Page 759 it and smelled the contents; agent Carter, who made the purchase, testified that he tasted the contents of the bottle, in order to determine whether the liquid was water. Carter stated that the defendant came into the room in the hotel, where he and Wright were staying, and that "she had two pints of alcohol." Carter further testified that Wright, in his presence, asked the defendant "if that was good alcohol," and that "she said it was, that she had sold the doctors, etc."
It appears from the record that Wright and Carter had for some time been engaged in the service of the Federal government as law-enforcement agents; that all the circumstances indicate clearly that the defendant intended to sell and knew that the purchasers believed they were purchasing alcohol for beverage purposes. From all the testimony, the jury could have entertained no doubt that the defendant knowingly and intentionally engaged in an illicit transaction and that the prohibition agents who made the purchase supposed and were encouraged to believe that the liquid brought to the hotel room by the defendant was alcohol. It is true that the testimony of the chemist tends to show that the liquid, when subjected to a careful chemical analysis, does not fully conform with formula standards prescribed for alcohol as known to science and to the trade. Such conflict as there may have been in the testimony was for the jury to resolve. Upon the whole record however, we are of the opinion that the jury were justified in finding that the liquid sold was alcohol within the prohibition statute and that the defendant was guilty of bootlegging. It is, of course, an elementary rule that the evidence for the prosecution must correspond with the allegations of the information and that a material variance between the matters alleged and those proved, is fatal. 33 C.J. 737. On the other hand, § 11,013, Comp. Laws 1913, requires this court to give judgment on appeal without regard to technical errors which do not affect the substantial rights of the parties. In the case at bar, the state charged the defendant with selling alcohol; it was therefore, incumbent upon the State to prove a sale of the commodity described in the information. While the evidence of the state is far from satisfactory, in view of the testimony of the chemist, who was called for the purpose of proving the character of the liquid, we are of the opinion that there is sufficient evidence in the record to support a finding by *Page 760 the jury that the liquid sold was alcohol, as charged in the information, and we think that the defendant has had a fair trial.
Counsel for the defendant moves for a dismissal of the petition for a rehearing, filed by the state, on the ground that this court has no jurisdiction to entertain it or to grant a rehearing in a criminal case, in view of § 11,019, Comp. Laws 1913, which provides:
"When the judgment of the supreme court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the district court from which the appeal was taken." The contention is that when a decision in a criminal case has been signed by a majority, filed with the clerk of this court, and the customary order for the remittitur made, the remittitur must, under the statute, supra, forthwith go forward to the district court and this court is without further jurisdiction in the cause. The fallacy in the argument lies in the failure to appreciate "When the judgment of the supreme court is given" within the meaning of the statute. The court, ever since its organization, has provided by rule, in effect, that the "judgment of the . . . court" is not "given" until after the lapse of a certain number of days from the date of the signing of the decision and of the order, and during such period counsel may call attention to errors in the opinion, or this court, on its own motion, may withdraw the opinion for correction or change. Counsel for parties are, in effect, notified that fifteen days from a given date the decision of the court will be given, an order accordingly entered in the minutes of the clerk, and a certified copy thereof remitted to the clerk of the district court, unless, in the meantime, counsel point to errors in the opinion, or the court itself makes changes or corrections therein.
In Wallace v. Stutsman County, 6 Dak. 1, 50 N.W. 832, the supreme court of Dakota Territory held that it had no jurisdiction to grant a rehearing after the remittitur had been sent down, no fraud, mistake or inadvertence appearing, and in Nystrom v. v. Templeton, 17 N.D. 463, 117 N.W. 743; Hilmen v. Nygaard, 31 N.D. 419, 154 N.W. 529, Ann. Cas. 1917A, 282; Youmans v. Hanna, 35 N.D. 479, 160 N.W. 705, 161 N.W. 797, Ann. Cas. 1917E, 263, the rule was applied as the law in this jurisdiction.
While ordinarily a rehearing is not granted upon questions not presented or discussed in the briefs or in the oral argument, yet, in exceptional *Page 761 cases, a rehearing may be granted to consider new aspects of material evidence, which may affect the merits of the main controversy and which, through inadvertence, were not presented by the parties or considered by the court when the original opinion was rendered. It is undoubtedly the duty of this court to grant a rehearing and order a reargument in the interest of justice when it appears that a decision has been based upon a mistaken assumption of fact or a misinterpretation of the evidence. See Security Mut. L. Ins. Co. v. Prewitt, 202 U.S. 246, 50 L. ed. 1013, 26 Sup. Ct. Rep. 619, 6 Ann. Cas. 317. The rule in this respect is not different in criminal cases, where the remittitur has not gone down. See State v. Sund, 25 N.D. 59, 140 N.W. 716, and State v. Council, 129 N.C. 511, 39 S.E. 814. In this state, as generally, a rehearing is not a matter of right, but of privilege; it has been given by this court under rule 15. Unless prohibited by statute, the power to grant a rehearing inheres in appellate courts. 4 C.J. 621, 622. It would be a most anomalous situation if an appellate tribunal, whose decisions are final, did not possess the power to correct errors in its decisions before jurisdiction has been lost through the transmission of the remittitur to the court below.
It has been the uniform practice of this court to entertain petitions for rehearing in criminal cases, whether filed by the state, or by the defendant. As far as we have been able to discover the power to do so has never before been questioned in this State. We are satisfied that this court has the power to grant a rehearing in a criminal case, when the circumstances warrant, as well on the petition of the state as on that of the defendant, and that the granting of the rehearing in the case at bar was justified and proper in the interest of justice.
The judgment is affirmed.
NUESSLE and BURKE, JJ., concur.