State v. Hillman

Evans, J.

I. The indictment was rendered against the defendant on September 11., 1924. He was arraigned on the same day, and appeared by counsel. The court set the ease for trial immediately following the civil cases. On September 19th, the ease was reached for trial, an(j eaned. Thereupon the defendant, through his counsel, asked for $ postponement of the trial for one day, in order to enable him to call his witnesses and to call associate counsel. This request was denied, and the ease proceeded to immediate trial. Several of the grounds of reversal are predicated upon this ruling by the court.

The propriety of the ruling was peculiarly within the discretion of the court. In view of the fact that the case had not been assigned for trial upon any fixed date, as provided by Section 3659, Code of 1897, we should have been better satisfied with the record if the postponement had been granted. It appears, however, that, at the time of arraignment, on September 11th, the court advised defendant and his counsel that September 19th would approximate the time when the case would be reached and called for trial. The motion did not purport to show or declare any diligence in the preparation for trial. Nor did it show or declare that the defendant had any 'witnesses which he could not procure on September 19th;'nor indeed did it show or declare that he had any witnesses at all. Nor 'did the motion show or declare that the associate counsel could not be procured in time for the trial. Telephone and automobile were available to him. So far as appears, no use or attempted use of either was made. Assuming that, in the stress of the moment, counsel may have overlooked the defects of his motion, he had a later opportunity, by motion for a new trial, to have made a full showing to the court of the disadvantages he had suffered by reason of his inability to procure his witnesses or his associate counsel. No such showing ivas offered.

Nothing appears in the record which would justify us in saying that the trial court abused its discretion in refusing the postponement.

II. The alleged errors which arise legitimately upon the record are very few; though the brief of counsel argues very many. That is to say, the brief goes beyond the record, and discusses many questions which were not presented or considered below, either on objection, exception, or otherwise.

At the close of the State’s evidence, the defendant moved for a directed irerdict for want of sufficient proof. The principal witness for the State ivas Winterowd. He testified that, in March preceding the indictment, he and two companions entered a cafe and ordered a meal; that the defendant ivas present at the same place; that the witness secretly interviewed him, and offered to purchase intoxicating liquor from him; that the defendant thereupon left the cafe, and shortly thereafter returned, and seated himself at the same table with Winterowd and his companions, and there “slipped” the bottle of intoxicating liquor under the table to Winterowd, whereupon Winterowd distributed the liquor to his companions and himself. This evidence was sufficient, as a matter of law, to warrant the overruling of the defendant’s motion. Stress is laid by appellant upon the fact that the two companions testified, as witnesses of 'the State, to the effect that they did not hear the conversation between Winterowd and the defendant, and that they did not see the defendant produce the liquor. They did testify that the de-. fendant left the cafe and returned again; that the liquor ivas distributed to them after the return of the defendant; that they had no liquor in their possession prior to that time. This evidence was properly corroborative of that of Winterowd. The weight and credibility of it Avere questions for the jury.

Complaint is made of the admission of the testimony of the AVitness Read. Its admissibility is challenged as incompetent and irrelevant. Read testified 'that he bought intoxicating liquor of the defendant at the defendant’s tire sll0P, an<^ tliat the defendant had the liquor concealed in his tire shop at the time. The argu ment is that Read’s evidence did not prove a case of bootlegging, but only an unlawful sale, and perhaps the maintenance of a nuisance. If the premise be conceded, this would not render the evidence inadmissible. In prosecutions either for nuisance or for bootlegging, unlawful sales may be shown as proof of the unlawful intent which characterizes the defendant’s possession. The evidence of Read was, therefore, .clearly admissible, regardless of the question whether it was sufficient of itself to prove a case of bootlegging.

III. Complaint .is made of the severity of the sentence. It was that the defendant bo committed to 'the county jail for the period of one year, and pay a fine of «$500. It is argued that the case was not an aggravated one, in that only two sales were shown by the evidence. Whether an aggravated case was presented, depends upon the point of view. From the point of view of the defendant, the offense proved against him was quite technical and inconsequential. His point of view is a part of the aggravation of his offense. His offense was not the result of inadvertence or of the heat of passion or of sudden temptation. It ivas an intentional and deliberate violation of an important and well known criminal statute. He had prepared himself in advance for its violation. He suffered no other temptation than a mercenary motive. His price was $4.00 a quart. His customers were addicts, who could not stand upon the price. The courts have tried faithfully to administer this statute without imposing unduly oppressive penalties, and with a disposition to be as lenient as the public interest will permit. But the leniency tendered has been construed as license; and increasing penalties have been the necessary sequel. In this case, the defendant became a witness in his own behalf, and denied categorically all the evidence, both of Read and of Winterowd. In finding him guilty, the jury necessarily found his evidence to have been false. If false, it was deliberately and consciously so. He had previously been convicted of a felony, and he disclosed himself herein as a conscious perjurer. The record discloses no reason that would justify us in interfering with the penalty imposed.

The foregoing comprise all the questions argued which are legitimately predicated upon this record. The judgment of the lower court is affirmed.- — Affirmed.

Faville, C. J., and Arthur and Albert, JJ., concur.