DocketNumber: No. 6022.
Citation Numbers: 23 P.2d 239, 53 Idaho 293
Judges: MORGAN, J.
Filed Date: 6/17/1933
Status: Precedential
Modified Date: 1/12/2023
From the petition filed herein it appears that by complaint filed in a justice court of Jerome county petitioner was charged as follows: "that the petitioner knowingly, wrongfully, unlawfully, wilfully and maliciously committed a misdemeanor by then and there selling to one Harry Beetham, for beverage purposes, one bottle of Budweiser Brew and one bottle of Becker's Becco, said bottles containing what is commonly known as near beer and being a malt liquor and as a matter of law deemed intoxicating. . . . ." that a warrant was issued and petitioner was arrested; that a preliminary examination was held, during which it was admitted that the bottles admitted in evidence contained a malt liquor. It appears that upon cross-examination of the only witness testifying, the following took place:
"Q. Mr. Davis, do you know whether or not the liquor in these bottles is intoxicating?
"Henry M Hall: We object, your Honor, for the reason heretofore set out, that in the decision of the Supreme Court as already cited, that being the case of State vs. Lockman, it is not necessary to prove that the exhibits in question contain alcohol in any capacity (quantity) nor that it will produce intoxication. *Page 305
"The Court: The objection is sustained."
Whereupon, counsel for petitioner moved to discharge the defendant for the reason that the prosecution had failed to prove that any crime or the crime charged had been committed, or that there was probable cause to believe the defendant guilty thereof, which motion was overruled. The court thereupon held petitioner to answer in the district court, the order of commitment being indorsed upon the depositions.
The grounds upon which petitioner seeks to be discharged from custody by this writ are that he was committed on said criminal charge without reasonable and probable cause, in that it was not shown that the liquor alleged to have been sold by him was capable, when used as a beverage, of producing intoxication, and that the decision of this court in re Lockman,
Furthermore, this court cannot on habeas corpus convert itself into an appellate court for the examination of questions reviewable on appeal. (In re Davis,
For the foregoing reasons I concur in the conclusion reached in the majority opinion that the writ should be quashed and petitioner remanded to custody.