State v. Murphy

DONALDSON, Justice.

Upon appeal from a lower court determination of guilt, the defendant-appellant Frank Murphy was tried de novo in district court for the crime of selling beer to a minor. A jury of six persons returned a verdict of guilty, and the district court fined the appellant $300.00 and sentenced him to twenty days in the county jail. This appeal is taken from the judgment of conviction entered by the district court.

The criminal complaint filed against the appellant charges him with “selling beer to a minor person” and indicates a violation of I.C. § 23-1023, which in pertinent part reads as follows:

“Beer — Procuring for or selling to person under twenty years of age a misdemeanor. — Any person who shall procure beer for any person under twenty (20) years of age or any person under twenty (20) years of age who shall purchase, attempt to purchase or otherwise procure, consume or possess beer, shall be guilty of a misdemeanor.”

The complaint alleges that the offense took place at a retail premises operated by the appellant. At the trial in district court, the state’s only evidence consisted of the testimony of two minors; one of them stated that the appellant had sold beer to him, and the other testified that he was waiting outside when the purchase was made and saw his colleague leave the premises with a case of beer. These minors, who had jointly planned the illicit purchase, were promised that if they testified at trial, they would not be prosecuted for any liquor violation they may have committed by purchasing, consuming, or possessing the proscribed beverage.

After the state rested its case, the defendant moved for dismissal or in the alternative for an advisory instruction to acquit, upon two grounds: First, the defendant contended that he was charged with violating I.C. § 23-1023, the statutory provision against procuring and purchasing, and not with violating I.C. § 23-1013,¹ which covers selling, serving, or dispensing beer to a minor; and, he contended, there was no evidence before the court to show that the defendant had procured or purchased beer in violation of I.C. § 23-1023. Second, the defendant submitted that the only evidence presented by the prosecution consisted of the uncorroborated testimony of accomplices, upon which a conviction cannot be had under I.C. § 19-2117.² The trial court denied the defendant’s motion for dismissal or for an advisory instruction to acquit. On appeal, the defendant abandons the first ground and contends only that the two state witnesses who testified against him at the trial were accomplices within the meaning of I.C. § 19-2117.³

The appellant’s contention must be rejected. The same argument has, without success, been made previously in cases involving other crimes. For example, it has been held that a woman who submits to an abortion is not an accomplice of the perpetrator of the crime. State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954); State v. Proud, 74 Idaho 429, 262 P.2d 1016 (1953). Similarly, this Court has ruled that “[t]he bribe giver is not an accomplice with the bribe taker; each is guilty of a distinct and separate offense.” State v. Emory, 55 Idaho 649, 656, 46 P.2d 67, 70 (1935). Likewise, under a statute substantially identical to I.C. § 19-2117, the Supreme Court of Arizona has held that a briber is not an accomplice of a bribee, even though they are both punishable under the provisions of the same statutory section. State v. Martin, 74 Ariz. 145, 245 P.2d 411, 414-415 (1952). In the case at bar, two separate crimes were committed when the illicit transaction was consummated: the appellant committed the crime of selling beer to a minor; and the minor purchaser committed the separate crime of purchasing beer.

The appellant mistakenly relies upon the following statement from the dissenting opinion in Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963): “Where the statute does not make buying illegal, the buyer is not a party to the offense of the seller.” Id. at 298, 379 P.2d at 421. The appellant’s position is that the converse must also be true — -that is, where buying is made illegal, the buyer is a party to the offense of the seller. Actually, however, the authorities cited in Howard to support the above-quoted statement stand for the quite different proposition that where buying is not made a crime, the buyer cannot be convicted as an aider and abettor of the seller’s crime. These cases simply reflect the notion that conduct which the legislature has chosen not to make a crime should not be made criminal through judicial construction. Where, as in this case, buying is made illegal, then, of course, the buyer may be convicted for directly committing the act constituting the offense; and he is not, in such a case, any more “a party to the offense of the seller” than he is where buying is not made illegal. Hence, the appellant’s contention cannot be sustained.

As we have recently pointed out, the testimony of an accomplice is generally “so corrupt as to render it unworthy of belief.” State v. Emmons, 94 Idaho 605, 495 P.2d 11, 15 (1972). The dissent notes that the testimony of the witnesses who testified in this case was also untrustworthy. However, although the testimony of an accomplice is, according to the legislature, untrustworthy, this does not mean that any time a witness’s testimony is untrustworthy, he must be deemed an “accomplice.” Thus, it has been held that an accessory after the fact is not an accomplice within the meaning of the statute requiring corroboration of his testimony, even though “the evidence discloses that this witness was himself deep in the mire.” State v. Gilbert, 65 Idaho 210, 215, 142 P.2d 584, 586 (1943); accord, State v. Rackley, 106 Ariz. 424, 477 P.2d 255 (1970). We also note that one who is subject to prosecution as an accessory after the fact has the same sort of incentive to cooperate with the prosecutor as did the witnesses in the case at bar. In neither case, though, may the witnesses properly be classified as accomplices; and whether or not it was wise policy to do so, the restrictive provisions of I.C. § 19-2117 are made applicable only to “accomplices.” The legislature did not, for example, choose to apply these provisions to “those involved in the same transaction,” or “those who are at the time subject to prosecution for another offense,” or “those whose testimony is for some reason untrustworthy.”

Judgment affirmed.

McQUADE, C. J., and SHEPARD, J., concur.

1 . I.C. § 23-1013 provides:

“Restrictions concerning age. — It shall be unlawful for any person to sell, serve or dispense beer to or by any person under twenty (20) years of age, proof of which, for every resident of this state, shall be a valid driver’s license or an identification card issued by the department of law enforcement.”

A violation of I.C. § 23-1013, like a violation of I.C. § 23-1023, is a misdemeanor. I.C. § 23-1020. A violation of either is punishable by the same penalty. I.C. § 18-113.

It appears to us that the defendant was prosecuted and convicted under the wrong section of the Idaho Code; although the complaint was sufficient to charge him with the crime of selling beer to a minor, it improperly indicated that this was a violation of I.C. § 23-1023 rather than a violation of I.C. § 23-1013. Although the heading enacted for I.C. § 28-1023, quoted above in the text, uses the words “procuring for or selling to,” the body of the section refers only to persons who “procure beer for” and omits any reference to “selling.” Where a heading is enacted as part of a code and where the meaning of the code is ambiguous, resort may be had to the heading as an aid in ascertaining legislative intent. But where the meaning of the code is clear and unambiguous without resort to the heading, courts will not consider it. Brotherhood of Railroad Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Bryant v. Poole, 261 N.C. 553, 135 S.E.2d 629 (1964); 2 J. Sutherland, Statutory Construction § 4903, at 388-389 (F. Horack ed. 1943, and cases cited therein); cf. Curoe v. Spokane & Inland Empire R.R., 32 Idaho 643, 186 P. 1101, 37 A.L.R. 923 (1920); Annot., 37 A.L.R. 927 (1925). In this case, the body of I.C. § 23-1023 unambiguously refers only to procuring for, which cannot be interpreted to include selling to. As used in this statute, the phrase “procure beer for” is synonymous with “obtain beer for.” Black’s Law Dictionary 1373 (4th ed. 1951) (“PROCURE. * * * To obtain, as intoxicating liquor, for another.”) ; Webster’s Third New International Dictionary 1809 (1969). To be sure, it is necessary to obtain beer before one can sell it; but the defendant in this case was charged with selling beer to a minor, not with obtaining (or procuring) beer for a minor. A seller of beer may obtain beer for legitimate purposes (i. e., not for a minor) and later decide to sell it to a minor; in such a case he may properly be prosecuted for selling beer to a minor but not for procuring beer for a minor. Since the language used in the body of I.C. § 23-1023 is clear and unambiguous, resort may not be had to the caption to interpret the meaning thereof. The appellant has abandoned this point by not assigning it as error on appeal and by not discussing it at all in his brief. This Court cannot grant relief on the basis of an erroneous trial court ruling where such was not assigned as error on appeal. State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970).

2 . I.C. § 19-2117:

“Testimony of accomplice — Corroboration. — A conviction can not be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.”

3 . See note 2, supra.