State v. Cornish , 73 Mont. 205 ( 1925 )

MR. JUSTICE GALEN

delivered tbe opinion of tbe court.

By information tbe defendants were jointly charged with tbe crime of “unlawfully selling intoxicating liquor.” Pleas of “not guilty” having been entered by tbe accused, they were tried jointly by a jury, which by its verdict found both defendants guilty, leaving punishment to be fixed by tbe court. Tbe court imposed a sentence upon each of tbe defendants of “six months” in tbe county jail, and “to pay a fine of two hundred dollars.” Judgment was separately entered as to each of tbe defendants accordingly. Motions for a new trial were separately made and by tbe court denied as to each of the defendants. Independent appeals from tbe judgments were prosecuted by tbe defendants. Tbe cases of each have been presented on a single record, and were briefed and argued together.

From a careful examination of tbe record we are of opinion that none of tbe assignments of error affecting tbe appellant D. L. Cornish are meritorious. Appellant’s brief does not exhibit tbe same painstaking work heretofore noted on tbe part of the defendants’ senior counsel. In this instance tbe argument is not logically presented on tbe errors specified, and tbe brief is loosely written.

Misconduct of tbe attorney general is urged as reason for a. reversal as to both of tbe defendants. However, no specification of error is based thereon, and from an examination of tbe record it appears that defendants’ counsel did not protect bis clients by objection to tbe ob noxious language employed by tbe attorney general in bis concluding argument to tbe jury. In tbe single instance during the progress of tbe trial, when objection was interposed to tbe statements of the prosecuting officer, tbe jury were by tbe court admonished not to pay any heed thereto. Under tbe circumstances ‘upon that particular occurrence the court did all it could to protect tbe defendants from possible prejudice in tbe minds of tbe jury resulting from tbe attorney general’s language.

In tbe condition of tbe record and tbe assignments of error relied upon for a reversal of tbe cases we find but one meritorious question presented, and that affects only tbe defendant Nell Cornish. Was tbe evidence against her sufficient to sustain tbe verdict? There is no contention made that tbe evidence was not sufficient to sustain a conviction of tbe defendant D. L. Cornish. As to him there is a sharp conflict in the evidence.

Tbe defendants are husband and wife, and at tbe time of tbe commission of tbe alleged offense they were living on a twenty-acre farm about four miles west of tbe city of Billings in a small house consisting of four rooms and a bath. Mrs. Cornish bad for some time prior to the day in question been serving chicken dinners at their home in order to assist in making a living and in paying off a mortgage indebtedness on tbe property. On tbe evening of April 12, 1924, tbe state’s only witnesses, B. A. Myers and Edwin C. Merris, state prohibition officers, were in company with Mr. and Mrs. Crosser, Zeke Rice and Mrs. Humphry. All were drinking and indulging in a sociable time. After dancing at tbe “Tavern Dance Hall” in Billings and riding around tbe city in an automobile, some time after 9 o’clock it was proposed that they should go to tbe defendants’ place. Accordingly they motored out there, and after arrival indulged in drinking and dancing for a while. During their stay at tbe defendants’ place tbe party were served by tbe defendant D. L. Cornish with at least three rounds of drinks. There is sharp conflict in the evidence as to whether the whisky was brought to the defendants’ place by the visiting party or was provided by the defendant D. L. Cornish and by him sold and served to the party. The only evidence whatsoever reflecting upon the conduct of the defendant Nell Cornish is the following: B. A. Myers, for the state, testified: “We danced, and Mr. Crosser ordered a drink from the defendant Nell Cornish, but she referred him to the man, the defendant Cornish. # * * ¥e danced some more. * * * I then asked the lady if we might have a drink, and she referred me to the man Cornish, the defendant here. * * * After we got in Mrs. Cornish sat in the rocking-chair all of the time that we were there; that is, I do not remember of her getting up at any time. * * * Mr. Merris did not pay Mrs. Cornish any money. He either put the money on the tray or in the man’s hand. I put mine in the man’s hand. I noticed that Crosser put his money on the tray and the defendant Cornish picked it up.”

Edwin C. Merris testified: “Mr. Myers ordered a round . of drinks from the defendant Cornish. I am not positive whether he ordered the first drink or Mr. Crosser ordered it. The nest drink was served by the defendant Cornish. I ordered a round of drinks later on from the defendant Cornish. * * * "We stopped the car twenty-five or thirty feet from the house, and I believe both of the defendants came out to the car. I am sure that they both came out to the car. * * * I saw Crosser have a bottle of whisky several times, but, if he had a bottle this night, I didn’t know it. I wouldn’t say that the whisky served to us didn’t come from Crosser’s bottle. The whisky came from the kitchen, and was served to us in glasses. "We didn’t endeavor to get a bottle. We thought we had enough drinks. I would say that Myers was absolutely sober. I didn’t give Mrs. Cornish any money, and I didn’t see Zeke Rice give her any money. The money I paid for drinks I dropped on the tray. I asked Mr. Cornish how much, and he said $3, and I dropped $3' on the tray, and the defendant took the $3 and put it in his pocket.”

Upon this evidence the defendant Nell Cornish was found guilty and the verdict upheld by the trial court, apparently upon the theory that, while she did not actually sell or participate in the unlawful sale of the liquor, yet by her presence and acquiescence in what was done by her husband she is equally guilty as a principal under the statute. (Sec. 10732, Rev. Codes.) Such is the contention of the attorney general upon these appeals. With this we do not agree. Her mere presence in her own home, where it was her right as well as her duty to be, is no evidence of her guilt; nor is the fact that her husband sold and served intoxicating liquors in her presence without protest from her sufficient to justify her conviction. All she did, as disclosed by the testimony, was to refer Mr. Crosser and Mr. Myers to her husband when they asked that the party be served with whisky. At most the evidence against her indicates that she was personally present and passive. It is not sufficient to show affirmative action in the commission of the offense by her, and her conviction was not justifiable.

The judgment is affirmed as to D. L. Cornish. As respects the defendant Nell Cornish the judgment is reversed, and the cause remanded to the district court of Yellowstone county, with directions to dismiss the information against her.

Mr. Chief Justice Callaway and Associate Justices Holloway, Stark and Matthews concur.