State v. Williams , 157 Wash. 49 ( 1930 )

FRENCH and MAIN, JJ., dissent. The defendant, George Williams, was, by information filed in the superior court for Cowlitz county, charged as a jointist as follows:

"He, the said George Williams on or about the 3 day of November, 1928, A.D., in the county of Cowlitz, state of Washington, and then and there being, did then and there willfully, unlawfully and feloniously conduct and maintain a place, known as the Kelso Hotel, situate in the city of Kelso, said county and state, for the unlawful sale of intoxicating liquor."

A trial in that court sitting with a jury resulted in a verdict finding defendant guilty, followed by final judgment thereon rendered against him, from which he has appealed to this court.

It was proven upon the trial, amply sufficient to warrant the jury in believing beyond a reasonable doubt, that, in a room known as room 20 in the building known as the Kelso Hotel, appellant did on November 3, 1928, and on numerous occasions within one, two and three months prior thereto, sell and deliver to various persons intoxicating liquor while occupying that room; which occupancy was by him at least such as to enable him to freely, and without interference by others, make such repeated sales and deliveries of intoxicating liquor therein. The evidence rather plainly indicates that there was then conducted by some person other than appellant a hotel business in that building, apparently occupying the whole of the building, including room 20 in which appellant made the sales and deliveries of intoxicating liquor. It does not appear, however, that appellant had any interest in or connection with the hotel business being conducted in the building.

[1] It is contended in behalf of appellant that there is a failure of proof to support the verdict and judgment, in that there is a variance between the proof, which pointed to his committing the offense only in room 20 of the hotel building, and the charge that he did "conduct and maintain a place known as the Kelso Hotel . . . for the unlawful sale of intoxicating liquor." To our minds, the words "Kelso Hotel," as used in this charge, mean nothing more than the place or the building within which the alleged offense is charged to have been committed. It seems to us of no consequence as to whether or not any hotel business was being conducted in that building, or as to who was conducting any such business therein at the time of the commission of the alleged offense. In our unanimous Department opinion in State v.Colotis, 151 Wash. 557, 276 P. 857, it is said:

"The full extent of the control exercised by the appellants over the place is not made certain by the evidence, but the evidence at all events shows their control of the place sufficient for them to freely carry on, without interference by others, the sale of intoxicating liquor there. In other words, appellants were conducting the unlawful sale of intoxicating liquor there as a business. This was enough to render them guilty as jointists, though the principal business of the place was that of maintaining a restaurant, possibly by some person other than appellants."

In that case there was drawn in question the guilt of the defendants as jointists who, in maintaining the place for the unlawful sale of intoxicating liquor, were doing so in a place maintained principally as a restaurant, with which business as such they had no connection, though they were there under such circumstances as to enable them to freely make sales of intoxicating liquor without any interference by others. We think that this appellant's control over room 20 in the Kelso Hotel building was at least such as to warrant the jury finding him guilty of maintaining that place as a place for the unlawful sale of intoxicating liquor under the law as announced in theColotis case, and that it is immaterial in our present inquiry as to what additional control of the room by the one maintaining the hotel there may have been. Nor do we think it of any consequence that appellant was not using the entire building as a place for the unlawful sale of intoxicating liquor. The proof, we think, was clearly within the allegations of the information.

We conclude that the judgment must be affirmed. It is so ordered.

MITCHELL, C.J., BEALS, FULLERTON, TOLMAN, HOLCOMB, and MILLARD, JJ., concur.