State v. Griebel

MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

The information in this ease charges that Frank Griebel, at a time and place, “did willfully, wrongfully, and unlawfully possess certain intoxicating liquors containing .one-half of one per centum or more of alcohol by volume, which -said liquors were then and there fit for use for beverage purposes,” contrary, eic. In another count of the information he was charged with willfully, wrongfully and unlawfully selling intoxicating liquors. The jury found him guilty on the first count and fixed his punishment at a fine of $500. It found him not guilty of selling liquor. The court pronounced judgment in • conformity with the verdict and provided that in default of payment of the fine the defendant be confined in the county jail one day for each $2 of the fine, or as much thereof as should be unpaid. Defendant moved for a new trial which was denied. The appeal is from the judgment and from the order denying a new trial.

1. Defendant’s counsel attack the information. They insist that it is insufficient because it is not alleged therein that the liquors -were intended for use in violation of the law nor that they were intended for unlawful sale; it does not state the nature of the intoxicating liquor defendant possessed, and it does not sufficiently inform the defendant as to what is charged against him. In view of the express provisions of the statute none of these objections is good.

By the terms of section 11843, Revised Codes of 1921, an information must contain “a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” It is supplemented but along the same line of liberality by section 11852. Section 11854 provides that presumptions of law need not be stated in an information. These sections are applicable to all informations and evince the intention of the legislature, as does Chapter 17, Part II, of the Penal Code, of which they are a part, to get away from the strict rules of criminal pleading formerly in vogue, many of which rules served no purpose except to provide for many a guilty man a convenient loophole of escape.

When we come to Chapter 29 of Part I of the Penal Code, commonly Known as the prohibition statute, we find in section 11049 this mandate: “No person shall on or after the date when this Act goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquors as a beverage may be prevented. ’ ’

Section 11070 reads as follows: “It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this Act or which has been so used, and no property right shall exist, in any such liquor or property.”

Section 11078, specifically relating to pleading in these liquor cases, provides that it shall not be necessary in any affidavit, information or indictment, to “include any defensive negative averments but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing and furnishing the defendant a bill of particulars when it deems it proper to do so.” (And see State v. Fredericks, ante, p. 25, 212 Pac. 495.)

Section 11079 provides that “The possession of liquors by any person not legally permitted under this Act to possess liquor, shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Act; but it shall not be unlawful to possess liquor in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his l)ona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used.”

It thus appears clear that in an information or indictment for unlawfully having possession of intoxicating liquor it is not necessary to allege that the defendant is not within any of the exceptions recognized by the statute. If the defendant relies upon any of the exceptions as a defense, the burden is upon him to establish it. (State v. Harris, 101 Or. 410, 200 Pac. 926; State v. Harding, 108 Wash. 606, Ann. Cas. 1913B, 136, note, 185 Pac. 579; Bell v. State, 62 Tex. Cr. 242, Ann. Cas. 1913C, 617, note, 36 L. R. A. (n. s.) 98, 137 S. W. 670.)

It was not necessary to state the nature of the intoxicating liquor. (Sec. 11111, Rev. Codes 1921; State v. Fredericks, supra; State v. Sullivan, 97 Wash. 639, 166 Pac. 1123; State v. Duff, 81 W. Va. 407, 94 S. E. 499; State v. Busick, 90 Or. 466, 177 Pac. 64.) It was perceived by the framers of the statute that occasion might arise when the general language of the pleading might not give the defendant sufficient specific information of the act charged; hence the bill of particulars mentioned in section 11078 was provided for. None was asked for in this case. None was necessary; the evidence discloses that the defendant was prepared to defend himself and ably at every point; every move of the state seems to have been anticipated by his counsel.

2. Defendant complains because the court excused a number of veniremen on the state’s challenges for cause over his protests. If injury had resulted to him, this court would look with serious eyes upon these assignments of error. But it is hot said that he did not have a fair and impartial jury. It does not appear that he objected to anyone who sat upon his jury, nor but what he had all his peremptory challenges unused. An accused may not insist that he have upon his jury any certain man. If he has a fair and impartial jury “of good and lawful men” he must be satisfied. He may not and should not ask for more.

3. Defendant and one Lyman conducted what is described as a soft-drink parlor and pool-hall, where they sold soft drinks, tobaccos, candies and the like. Lyman, was a barber, and plied his trade there also. At the time of his arrest defendant was behind the bar, where he was attempting to dispose of some whisky by pouring it from a bottle into the sump. The officer took from defendant this bottle, and also took from his bedroom upstairs a jug of moonshine whisky. There was found upstairs also a demijohn said to contain moonshine. Behind the bar was a bottle smelling of whisky, and in the cellar there was a bottle said to contain whisky.

Defendant on the stand offered evidence tending to show the character of his possession of some of the state’s exhibits. An objection by the state was sustained. Later in his testimony all material evidence offered was admitted, thus curing the error in rejecting the evidence in the first instance, if error there was.

Furthermore, not denying his possession of the whisky taken from him by the officers, he explained that the reason he was attempting to dispose of it was that he was afraid; he “got excited.” Further explaining his possession of this particular bottle, he said he kept it in his room unstairs for his personal use, not for sale, and just at the time of the officer’s arrival he was simply engaged in the time-honored custom of preparing for himself a morning toddy—a custom now relegated to the distant memories of all but forgotten things. But it seems that the jury was not impressed with these explanations.

We observe in passing that this whisky was not possessed by defendant in his private dwelling while the same was occupied and used by him as his dwelling only. (Sec. 11079, Rev. Codes 1921.) The evidence amply sustains the verdict.

4. Counsel for defendant say the court erred in giving instruction No. 4 over their objection. The instruction is subject to criticism but it could not have misled the jury in any way; and this is quite clear when it is read in conjunction with instruction No. 5.

5. Defendant’s contention that he may not lawfully be im prisoned in default of the payment of his fine, in accordance with the terms of the judgment, is foreclosed against him by the recent case of State v. Sorenson, 65 Mont. 65, 210 Pac. 752.

6. Other assignments of error are without merit.

The judgment and order are affirmed.

Affirmed.

Associate Justices Farr, Cooper, Holloway and Galen concur.