Brown v. State of Wyoming , 37 Wyo. 155 ( 1927 )

The defendant, petitioner in error herein, was convicted of violating the prohibition law, and he brings error.

1. The information in this case contained four counts, charging the defendant in the first count with keeping intoxicating liquor for sale; in the second count with unlawful possession of intoxicating liquor; in the third count with unlawfully manufacturing intoxicating liquor; and in the fourth count with maintaining a liquor nuisance. The jury found the defendant guilty on all four counts, but the trial court sentenced the defendant only upon the second and third counts, thus eliminating the first and the fourth counts from consideration. The sentence imposed on each the second and third counts was imprisonment of ninety days and a fine of $250, the sentences for imprisonment to run concurrently.

There is but little dispute in the facts, the only testimony in the case having been offered by the State. On March 13, 1924, the deputy sheriff of Natrona County, in company with other men, went to a garage in the city of Casper situated close to the dwelling of the defendant, plaintiff in error herein. The garage contained a concealed door connecting with a shaft leading to a basement under the garage. This basement was about fifteen feet in width, about forty feet long and about ten feet high, fully equipped with two stills for the manufacture of intoxicating liquor. At the time in question the defendant was found in this basement, alone, his actions giving rise to the suspicion that he was in charge. The light in the basement was connected by a wire with defendant's house and was controlled by a switch behind his kitchen range. Defendant made a statement that the still which was found cost him $5,000 and that "it would break him." When, at the time in question, he was found by the deputy sheriff and his men, one of the stills was still hot, with a large quantity of whiskey running therefrom. Other whiskey, already manufactured, was found in the basement. It is clear from these undisputed facts that the claim of counsel for defendant, that there was not sufficient evidence to justify the jury in finding that the defendant had anything to do with the manufacture of whiskey in the basement in question, is without merit. Nor was any error committed in the case by not giving an instruction on circumstantial evidence. No such instruction was asked, no exception was taken that none was given, and, without determining as to whether the case is one of circumstantial evidence at all or not, we are clear that the action of the court was, under the circumstances, without prejudice, and hence we cannot, in accordance with Gardner v. State, 27 Wyo. 316,196 P. 750, reverse the case because such instruction was not given by the court.

2. It is further argued that the court erred in failing to instruct the jury that the charges in the various counts of the information were but a single offense. Inasmuch as the defendant was not sentenced upon either the first or the fourth count, we need to consider this matter only in connection with the second and third counts. The law seems to be well settled, or at least the weight of authority seems to be, and it is in consonance with the plain dictates of reason and justice, that where a defendant is convicted of manufacturing intoxicating liquor, he cannot, either in the same trial or a subsequent trial, also be convicted of and punished for the possession of the identical liquor so manufactured. Dexter v. United States, 12 Fed. (2nd series) 77; Patrilo v. United States, 7 Fed. (2nd series) 804; Tritico v. United States, 4 Fed. (2nd series) 664; Morgan v. United States, 294 Fed. 82; Reynolds v. United States, 280 Fed. 1; Moore et al. v. State, (Okla.Cr.) 240 P. 153; Savage v. State, 18 Ala. App. 299, 92 So. 19; Rossman v. United States, 280 Fed. 950; Estop v. State, 11 Okla. Crim. 103,143 P. 64; Barton v. State, (Okla.Cr.) 222 P. 1019; see also People v. Cook, 236 Mich. 333, 216 N.W. 296; State v. Clark, (Mo.App.)289 S.W. 963; Coon v. State, 97 Tex. Cr. App. 645, 263 S.W. 914; State v. Beaudette, 122 Me. 44, 118 A. 719; State v. Tobin,31 Wyo. 355, 226 P. 681. Intoxicating liquor already bottled was found in the basement of the garage at the time above mentioned. This consisted not only of whiskey but apparently also of some other intoxicating liquor. The court, in its instruction, however, limited the consideration of the jury to whiskey. It does not appear, whether the whiskey so found was the whiskey for the manufacture of which the defendant was convicted herein, so as to make the rule above mentioned applicable. But under the instruction of the court, the defendant might have been convicted of the possession of the identical whiskey for the manufacture of which he was convicted. This was error. We find no error in the record in other respects.

It is accordingly ordered that the conviction and the sentence under the second count be set aside, but that the judgment in all other respects be affirmed. It is so ordered. The State may retry the defendant on the second count, if it so desires.

Modified and Affirmed.

POTTER, J., and KIMBALL, J., concur.