Bird v. State

• Decision Date: 21 June 1927
• Docket Number: 1313
• Citation: 257 P. 2,36 Wyo. 532
• Parties: BIRD v. STATE [*]
• Court: Wyoming Supreme Court

257 P. 2

36 Wyo. 532

BIRD v. STATE ^[*]

No. 1313

Supreme Court of Wyoming

June 21, 1927

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

John Bird was convicted of possessing and selling intoxicating liquor, and he brings error. See also 241 P. 701.

Reversed and Remanded.

H. S Ridgely, and Sullivan and Garnett, for plaintiff in error.

The court erred in instructing the jury that they might find defendant guilty or not guilty as they might believe themselves justified under the evidence; Robinson v State, 18 Wyo. 216. Intruction Number Two did not relate to an issue in the case, as defendant did not rely upon a license; United States v. Ry. Co., 191 U.S. 84; Faraone v. U.S. 259 F. 509; Kiersky v. U S. 263 F. 685; Deshazo v. State, 262 S.W. 764. The instruction is also erroneous in assuming that possession and sale had been proven in the case; People v. Tapia, 63 P. 1001. The court erred in imposing the maximum sentence permitted by the statute, no prior offense having been proven; the court erred in denying a new trial on ground of newly discovered evidence; Ry. Co. v. Hulette, 188 S.W. 654; Todd v. Jackson, 101 S.E. 192; Beales v. Cone, (Colo.) 62 P. 948; 5870 C. S.; Zarneke v. Kitzman, 183 N.W. 867; King v. Beaumier, 26 Wyo. 1; State v. Mahood, 177 S.W. 371; Bailey v. State, 55 N.E. 241; Murray v. Weber, (Ia.) 60 N.W. 492; Stackpole v. Perkins, (Me.) 27 A. 160; Gregory v. Farmers' Exchange, 224 P. 291.

W. O. Wilson, Attorney General, James A. Greenwood, deputy Attorney General, for defendant in error. (D. J. Howell, former Attorney General, and J. C. Pickett, former Assistant Attorney General, on the briefs.)

Instruction Number One, complained of, was given for the purpose of defining reasonable doubt and of advising the jury that defendant was charged with eight separate offenses, and that they might, if the evidence warranted, find defendant guilty or not guilty on any one of them; the instruction in State v. Robinson, 18 Wyo. 216, was condemned for omitting the words "from the evidence"; the point was also discussed in Richey v. State, 28 Wyo. 117; the instruction was not properly excepted to; McFetridge v. State, (Wyo.) 234 P. 505; 16 C. J. 1071. It is possible that instruction Number Two might have been omitted, but it was not prejudicial error; 16 C. J. 1049; State v. Walters, (Ore.) 209 P. 349; People v. Mit Singh, (Cal.) 209 P. 1013. A general exception to an instruction will be disregarded; Dickerson v. State, 18 Wyo. 440; 14 R. C. L. 809; 17 C. J. 86; McFetridge v. State, supra. The sentence was within statutory limits; Jenkins v. State, (Wyo.) 135 P. 749; Russell v. State, 19 Wyo. 272; Bishop on Criminal Law, 9th Ed., Page 697. Motion for new trial, on ground of newly discovered evidence, was not filed within the time required by Section 7583 C. S.; occurences transpiring after trial cannot be considered newly discovered evidence; 16 C. J. 1183. Impeaching evidence is not newly discovered evidence; Pasco v. State, (Wyo.) 117 P. 862; 16 C. J. 1202. The evidence would have been sufficient to convict, even though Sisto had been impeached.

BLUME, Chief Justice. POTTER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

The defendant was charged with the possession and sale at eight different times of intoxicating liquor, contrary to law. He was convicted of each of the charges, and sentenced to a fine of one thousand dollars and to confinement in jail for the period of three months. From the sentence so imposed, the defendant prosecutes error.

1. The court gave the following instruction, numbered one:

"You are instructed that the information filed in this case charges the defendant with eight separate offenses in the unlawful sale of intoxicating liquor, and the burden is upon the State of Wyoming, the plaintiff in this case, to prove beyond all reasonable doubt the truth of the material allegations contained in the information before you are entitled to return a verdict of guilty. It is within your province as jurors to find the defendant guilty as to any one or more of said eight separate offenses and not guilty as to one or more of them, as you may believe yourselves justified under the evidence in this case, and the law as explained in these instructions."

That portion of the instruction is complained of which commences with the words: 'It is within your province as jurors' etc. and it is claimed that when the court told the jury that they might find the defendant guilty of one or more of the offenses charged "as you may believe yourselves justified," the court virtually told the jury that they might find the defendant guilty though not convinced of his guilt beyond a reasonable doubt. We do not think that the instruction bears this interpretation. The statement "as you may believe yourselves justified" was qualified by "under the evidence in this case," and further by "and the law as explained in these instructions." Now the court had in the previous portion of the instruction told the jury that the state must prove the defendant guilty beyond a reasonable doubt. That was portion of "the law explained in the instruction," and hence the jury must have understood that they could not "believe themselves justified" to convict, unless they found that the defendant was guilty beyond all reasonable doubt. This fact is emphasized by a further instruction, numbered four, given by the court and reading as follows:

"The court instructs the jury that the defendant is presumed to be innocent of the crimes charged in the information until he is proven guilty beyond a reasonable doubt. This presumption of the defendant's innocence accompanies him throughout the trial and goes with the jury in their retirement and deliberation in the jury room; and all of the evidence must be examined by the light of such presumption; and that it entitles the defendant to an acquittal unless it is overcome by such evidence as to satisfy the jury of the defendant's guilt, beyond all reasonable doubt."

We think it clear, accordingly, that the assignment of error based upon instruction number one, given by the court, cannot be sustained.

2. The defendant complains of the sentence imposed upon him, which was the maximum sentence under the law for any one offense of possession and sale of intoxicating liquor. Sec. 27, c. 117, S. L. 1921. We said in State v. Sorrentino (Wyo.) 36 Wyo. 111, 253 P. 14, that we ought not, except in a clear case, to interfere with the discretion of the trial court in imposing a sentence which is within the limits fixed by law. In the case at bar the defendant was convicted by the jury of eight different offenses, while the court imposed only the maximum sentence for one offense. We cannot, under the circumstances, say that the court abused its discretion.

3. The information in this case in charging the defendant with the possession and sale of intoxicating liquor charged that in each case he did so "without a permit." This was done, doubtless, in view of the provisions of section 5 and 6 of c. 117, Sess. Laws of 1921, which permit the manufacture, sale, purchase, transportation and prescription of intoxicating liquors under certain conditions by certain persons pursuant to a permit issued by the commissioner of the law enforcement department. Section 3 of the same act provides that "no person shall on or after the date that this act goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquors except as authorized in this act." Sec. 30 of the same act provides that it shall not be necessary in any complaint, information or indictment to include any defensive negative averments. The fact of the possession of a permit to sell or possess intoxicating liquors was a "defensive negative" averment, and it was unnecessary for the state to either plead or prove that the defendant had no such permit. Altshuler v. United States, (C. C. A.) 3 F.2d 791; Rulovitch v. United States, (C. C. A.) 286 F. 315; Goldberg v. United States, (C. C. A.) 297 F. 98; Sharp v. United States, (C. C. A.) 280 F. 86. If the defendant wanted to rely upon the possession of a permit it was necessary for him under these authorities to introduce some evidence to that effect. The state did not, in the case at bar, introduce any evidence to negative the fact of the existence of a permit; nor did the defendant attempt to show that he had one. In fact the defendant absolutely denied the possession or sale of intoxicating liquor charged in the information, and that was his sole defense. Notwithstanding that, the court gave the following instruction, over objection:

"You are instructed that under the laws of the State of Wyoming, it is provided that no one shall manufacture, sell, purchase, transport, deliver, furnish or possess any intoxicating liquors, without first obtaining a permit therefor from the Commissioner of Law Enforcement of the State of Wyoming. The burden is on the defendant to prove that he has obtained such permit to deal in or to possess intoxicating liquors."

In as much as the defensive matter of the possession of a permit was not in issue and no evidence in connection therewith was introduced, the giving of this instruction was clearly error. Deshazo v. State, 97 Tex. Crim. 490; 262 S.W. 764; Johnson v. State, 98 Tex. Crim. 417, 266 S.W. 155; Scogin v. State, 100 Tex. Crim. 389, 273 S.W. 575; Tro v. State, 101 Tex. Crim. 185, 274 S.W. 634. The ruling in the cited cases is in accordance...