State v. Zimmerman , 78 Utah 126 ( 1931 )

The defendant was convicted of being a persistent violator of an act "Prohibiting the manufacture and use of intoxicating liquors, and regulating the sale and traffic therein." Comp. Laws 1917, § 3341 et seq., as amended. He was sentenced to serve an indeterminate term in the state prison and appeals.

He seeks a reversal of the judgment upon two grounds. His first assignment of error is founded upon one of the instructions which the trial court gave to the jury. A brief summary of the evidence received at the trial is necessary to 1 understand the circumstances which prompted the giving of the instruction complained of. The state offered evidence which tends to establish these facts: On January 3, 1930, the defendant was convicted of knowingly having possession of intoxicating liquors. On March 14, 1930, three peace officers of Salt Lake City and two employees of the United States government went to defendant's residence in Salt Lake City, Utah, for the purpose of searching for intoxicating liquors. They had a search and seizure warrant. After the officers had searched various parts of defendant's premises, one of them informed the defendant that he desired to go into one of the bedrooms. The defendant stated that the other officers had seached that room, but when the officer insisted on going into the bedroom the defendant unlocked the door and permitted the officer to enter. During the search, the officer discovered that the threshold of the door in the bedroom was loose. Upon removing it, he found stored in a cache three bottles of whiskey and five one-pint bottles of gin.

The defendant was called as a witness in his own behalf. He testified that the building searched consisted of twenty-two rooms, and he was using it for conducting a rooming and boarding-house; that he had not used the bedroom where the liquor was found, except for a few days; that various persons had used the room; that a miner who also engaged in gambling had recently occupied the room. Defendant further testified that he did not know that the threshold of the bedroom was loose; that he did not know there was any intoxicating liquors under the threshold; and that he was not in possession of the liquor.

The instruction complained of reads as follows:

"You are further instructed that if you find from the evidence that the said defendant Charles Zimmerman had no knowledge of the loosened threshold to the said room, under which the said cache of intoxicating liquor was found, and if you further find from the evidence that he had no knowledge or information as to said intoxicating liquor being stored thereunder, and if you further find from the evidence that the said intoxicating liquor was not in the possession of the said defendant, then and in such event it would be your duty to find the defendant not guilty."

Counsel for defendant objected and excepted to the foregoing instruction, "and particularly that part wherein the court instructs the jury that if they find from the evidence that the defendant, Charles Zimmerman, had knowledge of the loosened threshold to the said room, under which the said cache of intoxicating liquor was found, and to the making of said knowledge an element in said instruction." It is not entirely clear what counsel for the defendant had in mind when he made the objection just quoted. The contention is here made on behalf of defendant that the instruction complained of in effect informed the jury that if the defendant knew the threshold was loose, or if he knew the intoxicating liquor was under the threshold, then they should find him guilty. If the instruction can be said to convey such a meaning, it is clearly objectionable. The defendant may have known that the threshold was loose and may also have known that intoxicating liquor was stored thereunder, yet, unless he had control of and exercised dominion over the liquor, he was not in possession thereof. The instruction under review might well have confined the issue to the question of whether or not the defendant knowingly had the possession of the intoxicating liquor; but in view of other instructions given which do so confine the issue, we do not see how the jury could have been misled, much less could they have read into the instruction the meaning contended for by the appellant. Certain it is that if the jury should have found that the defendant did not have the possession of intoxicating liquor, and did not know of the loosened threshold and of the intoxicating liquor stored thereunder, he was entitled to a verdict of not guilty. The instruction thus in effect informed the jury that if they believed the defendant's evidence they should acquit him. Defendant's knowledge or lack of knowledge of the loosened threshold was in no sense an element of the crime charged, yet such fact was a proper subject of judicial inquiry. We do not see how the language complained of could have been prejudicial to the defendant when the instructions are read and considered as a whole. The defendant is not entitled to a reversal of the judgment upon his first assignment of error.

Defendant's other assignment of error is founded upon an alleged statement made by the trial court to the jury after it appeared that the jury had difficulty in agreeing upon a verdict. After the defendant was convicted he filed a motion for a new trial. In support of such motion, counsel made 2 and filed an affidavit where it is in substance alleged that after the jury had deliberated for about four hours they came into court and reported that they were unable to agree upon a verdict; that no reporter was present when the jury returned; that the trial judge stated to the jury that he could see no reason why they could not agree, that the facts were simple and the evidence clear; that he admonished them to go out again and find a verdict; that thereupon the jury again retired to further deliberate and in a short time returned with a verdict finding the defendant guilty; that subsequently affiant talked with one of the jurors who sat in the case; that the juror stated:

"that he thought there was a hopeless deadlock; but that he thought and believed the other jurors thought, that the said judge thought it ridiculous that no verdict was arrived at, and that he and he thought others of the jurors were influenced by the judge's said remarks, and that thereupon the jurors who were opposing a verdict voted for the verdict which was returned, and that he thought if it had not been for said remarks of said judge no verdict would have been agreed upon by said jury."

No claim is made by appellant that any objection or exception was taken to the statement made by the trial court to the jury at the time such statement was made or at all, until the filing of the motion for a new trial. Appellant contends that the statement complained of was in the nature of an instruction to the jury, and should have been in wrting. It is well established in this jurisdiction that an exception to an instruction must be made before verdict, otherwise it may not be reviewed on appeal. The statement complained of, however, cannot well be said to be an instruction. But whether it be regarded as an instruction or as a remark, the rule is the same. An objectionable remark directed to the jury must be excepted to or it may not be reviewed on appeal. 17 C.J. 79. A remark of a judge to a jury may not be said to be an order, decision, or ruling, and therefore it is not deemed excepted to under the provisions of section 6806, Compiled Laws of Utah 1917. We are thus precluded from reviewing the instruction or remark which appellant seeks to have reviewed, because, so far as appears, no exception was taken thereto until after verdict.

The judgment is affirmed.

CHERRY, C.J., and FOLLAND and EPHRAIM HANSON, JJ., concur.