State v. Knilans , 69 Mont. 8 ( 1923 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In an information filed in the district court of Daniels county on January 6, 1922, it was charged that this defendant had violated the prohibitory liquor laws on or about December 26, 1921. On January 16, 1923, that information was dismissed on motion of defendant and with the consent of the county attorney. On the same day a new information was filed, and thereafter a demurrer to that information was sustained. On February 5, 1923, an amended information was filed containing two counts; in the first count the .defendant was charged with the unlawful sale of intoxicating liquor on or about December 26, 1921, and in the second count he was charged with the unlawful possession of intoxicating liquor on or about January 6, 1922. A plea of not guilty was entered, a trial had, and the defendant found guilty upon both counts. He has appealed from the judgment and from an order denying him a new trial.

1. Error is assigned to the order of the court overruling the demurrer to the original information. Upon the dismissal that pleading became functus officio, and the question now presented is purely a moot one and will not be considered. (Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont. 494, 124 Pac. 475.)

2. It is contended that the amended information does not charge a public offense in either count, in that it fails to state (a) the kind of liquor possessed or sold, (b) the place where possessed or sold, or (c) the name of the person to whom the liquor was sold, and authorities from other jurisdictions are cited which would lend support for the contention but for the fact that section 14, Chapter 143, Laws of 1917 (sec. 11111, Rev. Codes 1921), specifically relieves the pleader from the necessity of alleging any of the facts mentioned (State v. Fredericks, 65 Mont. 25, 212 Pac. 495).

But counsel for defendant insists that the statutes above were repealed by Chapter 9 of the Extraordinary Session of 1921 (sec. 11078, Rev. Codes 1921). In this counsel is mistaken. Section 391 of Chapter 9, above, declares that certain sections of Chapter 143, Laws of 1917, not including section 14, and other enumerated statutes, are repealed, and then concludes: “Except as herein otherwise specified, this Act shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors.” There is not any conflict between the provisions of section 11078 and the provisions of section 11111 above; hence the general repealing clause found in the former does not affect the provisions of the latter.

3. While the first count of this information charged that the sale was made on or about December 26, the evidence in support of the charge all related to a sale made on December 3. Defendant now complains that he was prejudiced by the ruling of the court admitting the evidence, but the record is conclusive against him. It is disclosed that defendant was furnished a bill of particulars in which he was advised that the state would rely upon proof of a sale made on December 3 and was given the names of the persons to whom the alleged sale was made. But furthermore, when the state’s testimony was concluded, the court invited the defendant to say whether he had been taken by surprise so that he could not properly defend against the charge, and defendant declined to say that he was so surprised and did not ask for a continuance. We do not mean to intimate that there was a material variance between the pleading and proof, but defendant is not now in a position to say that he was prejudiced in respect of any substantial right. Section 11874, Revised Codes of 1921, declares: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

'4. To prove that defendant’s possession of the liquor on January 6, 1922, was unlawful, the state introduced evidence to the effect that on December 26, 1921, defendant had unlawfully sold some of the same stock of liquors, and the liquors seized on January 6 were introduced in evidence. It appears from the record that in 1922, in a separate proceeding against these liquors, the court adjudged them forfeited and ordered them destroyed, and the contention is made that if the order had been obeyed the liquors would not have been in existence and could not have been used as evidence upon the trial of this case, hence it was error to permit them to be so used. The order, did not designate any time within which the liquors should be destroyed; but, assuming that the order was disobeyed, the consequence of such disobedience might subject the officer to punishment for contempt, but could not affect the admissibility of the liquors as evidence.

It is contended further that evidence of an unlawful sale on December 26, 1921, could not be introduced to prove that the possession of the liquor was unlawful, for the reason that by the dismissal of the original information defendant was acquitted of the charge of selling liquor on December 26, 1921. But defendant is in error in assuming that that dismissal operated as an acquittal. “The general rule established ■by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and had pleaded, and a jury have been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach.” (16 C. J. 236.) “It is a general rule that a nolle prosequi, dismissal or discontinuance, entered before a defendant is called upon to plead, or before the jury are impaneled and sworn, is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense.” (Id. 248; State v. Keerl, 33 Mont. 501, 85 Pac. 862.)

Section 12229, Revised Codes of 1921, provides: “An order for the dismissal of an action, as provided in this Chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, ’ ’ etc.

While the charge contained in the first count of this infor mation .is apparently the same as that contained in the original information which was dismissed, the record discloses that it was not such in fact. In the original information the sale was alleged to have been made on or about December 26, 1921. Pursuant to the provisions of section 11078 a bill of particulars was demanded by defendant and furnished by the state, in which the date of the alleged sale was fixed as December 26, 1921, the kind and quantity of liquor alleged to have been sold described, and the names of the purchasers, Robert Noland and J. F. Morrison, were given. In the amended information the sale was alleged to have been made on or about December 26, 1921, but in the bill of particulars furnished under this information the defendant was apprised of the fact that the state would rely upon a sale made December 3, 1921, to R. L. Morrison and J. F. Morrison. The two offenses were not the same, and dismissal of the first information did not bar prosecution under the amended information.

5. It is contended that the prosecution of this action was barred by the provisions of section 11724, Revised Codes of 1921, which provides: “An indictment for any misdemeanor must be found, or an information filed or complaint made, within one year after its commission.” The prosecution of the offense charged in each count was barred unless the case is brought within the provisions of section 11725, which declares: “If, after the offense is committed, the defendant leaves the state or resides outside the state, the indictment may be found or an information or complaint filed within the time herein limited, after his coming within the state, and no time during which the defendant is not an inhabitant of or actually a resident within this state is part of the limitation.”

To prevent the interposition of the plea of the bar of the statute of limitations, the county attorney included in each count the following allegation: “That after the commission of said offense, to-wit, on or about the twentieth day of April, 1922, the said defendant W. Knilans left the state of Montana and from said date until on or about the twentieth day of August, A. D. 1922, a period of approximately four months, the defendant, "W. Knilans resided outside of t’he state of Montana.”

It is conceded that this is a sufficient pleading, but it is contended that the state failed to prove the facts alleged. In his brief, counsel for defendant now insists that since the state alleged that the defendant resided outside of the state of 'Montana for a period of time sufficient to bring the prosecution within the statute, it was incumbent upon it to prove that allegation, and proof of absence from the state is not sufficient. But again defendant is precluded from making this argument by the record. Defendant requested the court to give, and the court gave, instruction 8, which reads as follows: “You are instructed that before you can find the defendant guilty of the crime charged in the first count herein you must be satisfied from the evidence beyond a reasonable doubt that between the twentieth day of April, 1922, and the twentieth day of August, 1922, the defendant left the state of Montana and remained outside of the state of Montana for a period of at least twenty days, and before you can find the defendant guilty of the crime charged in the second count of said information you must he satisfied beyond a reasonable doubt from the evidence that between the twentieth day of April, 1922, and the twentieth day of August, 1922, said defendant left the state of Montana and remained outside of the state of Montana for a period of at least ten days.”

This instruction became the law of the case, binding upon the defendant, who cannot now be heard to say that a greater burden was imposed upon the state than that indicated by his own instruction. The burden was imposed upon the state to prove that between April 20, 1922, and August 20, 1922, the defendant left the state of Montana and remained outside the state for a period of at least twenty days so far as the charge contained in the first count is concerned, and for a period of at least ten days so far as the charge contained in the second count is concerned. The evidence discloses that defendant left Scobey, Montana, about May 18, 1922, stating that he intended to go to Ireland; that he returned about August 20, 1922, and upon his return stated that he had gone to Ireland by boat on a business trip, had visited Liverpool among other places, and had been absent several months. The fact that he had been absent from the state for the necessary period could be established by circumstantial evidence, and it cannot be said that it is' not a legitimate inference from the testimony above that defendant was absent from Montana for at least twenty days.

We find no error in the record.

The judgment and order are affirmed.

'Affirmed.

Mr. Cheep 'Justice Callaway and Associate Justices Cooper, Galen and Stark concur.