State v. Thomason , 167 La. 404 ( 1928 )

ROGERS, J.

The defendant was convicted as a second offender of the violation of the prohibition law, and was sentenced to imprisonment for 60 days in the parish jail, to pay a fine of $600 and all costs, and, in default of the payment of the fine and costs, to serve an additional term of 12 months in jail, from which conviction and sentence he prosecutes this appeal.

The case has been submitted by the state without either brief or oral argument, and by the defendant merely on a meagre brief. So far as we are able to interpret the confused record, it shows that two informations were filed against the defendant. One of these in-formations, as amended by a bill of particulars, charges defendant with the unlawful possession on June 9, 1928, of intoxicating liquor for beverage purposes, and in the other information defendant is charged with unlawfully possessing on June 2, 1928, intoxicating liquor for sale for beverage purposes. In each of the informations it is alleged that the crime charged constitutes the second offense committed by the defendant in violation of the statute.

The record further shows, as we understand it, that the defendant was tried, convicted, and sentenced on the information hereinabove first mentioned, charging him as a second' offender with the possession of intoxicating liquor for beverage purposes.

Defendant relies on three unnumbered bills of exception, which we will dispose of in the order in which they appear in the transcript.

1. This bill was taken to the action of the trial judge in overruling defendant’s motion for a continuance. The basis of the motion made under oath is that defendant’s wife, whom he had summoned as a witness on his behalf, was confined to her bed by illness, and was thereby unable to obey the summons and to be present in court. Defendant alleged the materiality of the testimony, and set forth the facts he expected to prove by the witness. The state admitted that the witness named, if present, would swear to the facts stated. Therefore, we do not see wherein defendant has any cause to complain.

2. This bill was reserved to the action of the trial judge in overruling a motion to quash the information. The basis of the motion, so far as the instant case is concerned, is that the offense charged herein is the same offense that defendant is charged with committing on June 2, 1928, as set forth in the information hereinabove.secondly mentioned. Defendant alleges that this case is an effort on the part of the state to prosecute him twice for the same, offense, in violation of the state Constitution. The answer to this contention is that the informations charge defendant with separate and distinct offenses committed on different dates. One alleges that he unlawfully possessed intoxicating liquor for beverage purposes, and the other avers that he unlawfully possessed intoxicating liquor for sale for beverage purposes. Therefore, we do not find any error in the ruling complained of.

3. This bill was taken to the action of the trial judge in overruling a motion for a new trial on the ground that the judgment of conviction is contrary to the law and the evidence. The bill presents nothing for the consideration of this court.

Por the- reasons assigned, the conviction and sentence appealed from are a farmed.