City of Seattle v. Love

• Court: Washington Supreme Court
• Writing for the Court: ROSELLINI; FINLEY
• Citation: City of Seattle v. Love, 377 P.2d 255, 61 Wn.2d 113 (Wash. 1962)
• Decision Date: 27 December 1962
• Docket Number: No. 36083
• Parties: The CITY OF SEATTLE, Respondent, v. John N. LOVE, Appellant.

Page 113

61 Wn.2d 113

377 P.2d 255

The CITY OF SEATTLE, Respondent, v. John N. LOVE, Appellant.

No. 36083.

Supreme Court of Washington, Department 1.

Dec. 27, 1962.

Rehering Denied Jan. 24, 1963.

Henry Opendack, Seattle, for appellant.

A. C. Van Soelen, Corp. Counsel, Robert Leslie, Asst. Corp. Counsel, Seattle, for respondent.

ROSELLINI, Judge.

The defendant was charged in four counts with the misdemeanors of illegal sale of intoxicating liquor and aiding and abetting such illegal sale, and was found guilty on all counts.

He contends first that the court should have given detailed instructions on the presumption of innocence, burden of proof, and reasonable doubt. No instructions were requested, and the defendant's brief does not suggest to this court what language should have been used. It is well settled that, in the absence of a request to instruct, the court's failure to do so is not error. State v. Goldstein, 58 Wash.2d 155, 361 P.2d 639; State v. Ross, 85 Wash. 218, 147 P. 1149. ¹

It is next suggested that the court should have given an instruction defining 'unlawful sale.' Again, there was no request for such an instruction.

Other similar assignments of error are unsupported by legal arguments in the brief. Such assignments will not be considered by this court. Verstraelen v. Kellog, 160 Wash.Dec. 117, 372 P.2d 543; Wickre v. Allen, 58 Wash.2d 770, 364 P.2d 911.

The defendant assigns error to the giving of an instruction on aiding and abetting the unlawful sale of intoxicating liquor, and contends that there is no such crime. While he took exception to this instruction on the ground that it was a comment on the evidence, according to the record before us, he did not maintain that aiding and abetting was not a crime. It is the general rule that this court will not consider an objection to an instruction that was not presented in the trial court, and the defendant has not proposed any reason why an exception to this rule should be made in this case.

It is finally urged that the trial court erred in instructing the jury as follows:

'You are instructed that if a bottle containing a liquid the color of whiskey of a known brand under its usual label, bears an unbroken government seal, it shall be taken by you to be intoxicating liquor.'

In the case of State v. Kekich, 25 Wash.2d 482, 171 P.2d 210, it was contended that there was only one proper way to prove the contents of a bottle to be whisky, and that was to have such contents tested by a chemist at the trial in the presence of the court and jury. We held, however, that the introduction into evidence of a four-fifths quart bottle containing a liquid the color of whisky under the usual label of a well-known brand, and bearing an...