State v. Toy

MR. COMMISSIONER BORTON

prepared the opinion for the court.

This is an appeal from a judgment of conviction and from an order overruling defendant’s motion for a new trial.

There are twelve specifications of error, eleven in the brief and one presented by stipulation of counsel upon the hearing. These may be grouped for consideration under the following questions: (1) Does the information state a public offense? (2) Did the court err in sustaining state’s objection to a question-propounded by the defendant? (3) Did the court err in refusing to give certain instructions asked for by the defendant? (4) Is the evidence sufficient to^ support the verdict? .(5) Is the judgment a valid judgment? And (6) Did the court err in denying defendant’s motion for a new trial?

1. The appellant Toy was convicted in the court below of an infraction of the narcotic law. The jury under the instructions of the court fixed his punishment at imprisonment in the county jail for one year, and a fine in the sum of $1,000. At the opening of the testimony the defendant sought to challenge the information by objection to the receiving of any testimony on the ground that said information set forth more than one offense. This objection can only be taken by demurrer (sec. 11898, Rev. Codes 1921), and when not taken before plea, is waived. (Id., sec. 11906; State v. Mahoney, 24 Mont. 281, 61 Pac. 647; State v. Kanakaris, 54 Mont. 180, 169 Pac. 42.)

2. It was the theory of the defendant that the sale, if any was made, of the narcotics, was by a Chinaman of the name of Gain Hueng, familiarly called the “old man,” and that after the sale had been made the “old man” requested the witness King to keep the marked money for him, but that, being advised by King that the defendant, Toy, had returned, thereupon handed the money to Toy. During the taking of the testimony of the witness Charlie King, and at the conclusion of this testimony, “after the white man went back in the rear about fifteen or twenty minutes Gain Hueng came out and gave some money to me, and I told him, ‘You give the money to Toy.’ He attempted to give me a twenty dollar bill and two silver dollars. He then gave it to Toy, and told him to keep it for him, and I seen Toy put it in his pocket”—the defendant proposed the following question: “Had Gain Hueng, the ‘old man,’ ever given you any money before, while Toy was in Helena, to keep for him?” This question was objected to by the state as incompetent, irrelevant and immaterial, not appearing in any issue in the case, and the objection was sustained. . There was no offer of proof subsequent to the sustaining of the objection to the question.

Before a court can be put in error on the direct examina tion of a witness in sustaining an objection to a question where the question does not clearly indicate the answer itself, an offer of proof must be made and denied. (Herzig v. Sandberg, 54 Mont. 538, 172 Pac. 132.) Can it be fairly said that this question indicates clearly the answer intended to be elicited? It does not. Even if it did, and it became material in proving a custom, other questions must necessarily have been asked along the same lines. For example, if the question was answered “Yes” then it must become important to ascertain how many times, as proving or failing to prove custom. It is clearly apparent therefore that, since the question does not clearly indicate the answer, and in itself does not gp far enough to establish custom, and no offer of proof was given, tbe court was not in error in sustaining the objection.

3. The court refused to give defendant’s requested in- structions Nos. 3a and 4a, and properly so. Their essential elements were covered by court’s instruction No. la, which is as follows: “You are instructed that in-judging the credibility of á witness and the weight to be given to his testimony, you are entitled to take into consideration the fact, if it be a fact, that such a witness is a habitual user of drugs and their effect, if any, on his powers of recollection and perception and on his mental and moral sensibilities.”

4. There is a sharp conflict in some of the material evidence, but under the familiar rule, many times enunciated by this court, this court will not interfere, unless there is clearly a substantial error in weighing the testimony or judging the credibility of witnesses. (State v. Pippi, 59 Mont. 116, 195 Pac. 556.) Neither one of these errors appears in this cause, and we conclude that there was sufficient evidence to sustain the conviction.

5. The judgment is assailed for the reason that the law does not prescribe where the imprisonment shall be served. The penalty for the violation of the Act is as follows: “Any person who violates or fails to comply with any of the requirements of this Act shall, on conviction, be punished by a fine of not more than one thousand dollars or by imprisonment for not more than three years, or by both such fine and imprisonment.” (Sec. 3202, Rev. Codes 1921.)

It is the general rule that where no place of imprisonment is fixed by the statute, such imprisonment is in the county jail or city prison, as the case may be, rather than in the penitentiary. This rule is supported by Gherna v. State, 16 Ariz. 344, Ann. Cas. 1916D, 94, 146 Pac. 494; Union Ice Co. v. Rose, 11 Cal. App. 357, 104 Pac. 1006; Commonwealth v. Francis, 250 Pa. 350-352, 95 Atl. 798. Therefore the judgment was not invalid, since it fixed the place of imprisonment in the county jail.

6. What has been said above relative to the sufficiency of the evidence to support the verdict. is applicable to the consideration of the action of the court in denying defendant’s motion for a new trial,- and in this particular the court did not err.

We recommend that the judgment and order be affirmed.

Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Affirmed.