Earp v. State

• Decision Date: 13 November 1919
• Docket Number: Criminal 471
• Citation: 184 P. 942,20 Ariz. 569
• Parties: BAILEY EARP, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

184 P. 942

20 Ariz. 569

BAILEY EARP, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 471

Supreme Court of Arizona

November 13, 1919

APPEAL from a judgment of the Superior Court of the County of Yuma. F. L. Ingraham, Judge. Reversed, with directions.

Mr. A J. Eddy, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. C. M. Gandy, Mr. L. B Whitney, Mr. A. B. Baker, and Mr. F. J. K. McBride, Assistant Attorneys General, and Mr. W. F. Timmons, County Attorney for the State.

OPINION

ROSS, J.

The appellant was charged with violating the prohibition laws by information, the accusing part thereof being as follows:

"The said Bailey Earp, on or about the twenty-seventh day of December, 1918, . . . at and in the county of Yuma, state of Arizona, did then and there willfully and unlawfully give, sell, and dispose of intoxicating liquor to another, contrary. . . ."

To this information he demurred because, as he alleges "it does not contain a statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended, and is not direct and certain as to the offense charged or the particular circumstances of the offense charged."

The demurrer was overruled, and upon a trial appellant was convicted. He assigns the overruling of the demurrer as error.

The information does not give the name of the person who, on or about December 27th, purchased from appellant the intoxicating liquor, nor does it set forth any other fact or facts to identify the particular transaction intended to be charged. The only definite and certain allegation is that a sale was made by appellant "to another" in Yuma county, Arizona. The date of the sale as given does not tend to identify the offense because a conviction could be had under the law by proof establishing a sale in Yuma county at any time within two years before the filing of the information. Penal Code, § 939.

It is provided by section 936, Penal Code, that "the indictment or information must be direct and certain as it regards . . . (2) the offense charged; . . ." and, according to section 943, "the indictment or information is sufficient, if it can be understood therefrom . . . (6) that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. . . ."

Does this information meet the requirements of these sections of the statute? It names an offense of a class but it does not point out the particular one of that class for the commission of which appellant is to be tried. It covers any and every possible offense within the class that appellant may have or could have committed within two years before the information was filed, and one as directly and certainly as any other. If the prosecution may, at any time up to and before the introduction of its testimony under the information, select any one of a number of violations of the law by a defendant where the violations may consist in each case in selling liquor to a different person at different times and placees, the information is anything but "direct and certain as it regards the offense charged." No person can tell by reading such an information what "act" -- sale or gift -- was intended to be charged as the offense. The act charged as the offense -- some particular, certain act -- must be "clearly and distinctly set forth," that is, described so as to distinguish it from any other act of the class to which it belongs, "and in such manner as to enable a person of common understanding to know what act is intended" to be charged as constituting the offense. Under other provisions of our statute the indictment or information must charge but one offense (section 938, Penal Code), and it must contain a statement of the acts 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. Section 934, Penal Code.

"The object of these provisions is to present a distinct issue for trial, and clearly inform a defendant of that with which he is charged, that he may prepare to meet it." People v. Cunningham, 66 Cal. 668, 4 P. 1144.

If the prosecution may await the commencement of the trial and then, for the first time, select one of a class of acts included in the terms of the information upon which a conviction will be asked, all of these objects would be completely defeated. A defendant would be as well apprised of the particular offense laid against him if the information simply alleged "that on or about December 27, 1918, at the county of Yuma, he unlawfully sold intoxicating liquors." Adding the expression that he sold or gave away the liquor "to another" would not assist the court or counsel or the defendant in identifying the particular offense intended to be charged. In People v. Webber, 138 Cal. 145, 70 P. 1089, it is said:

"The Penal Code does not relieve the prosecuting attorney from the necessity of informing the defendant with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare his defense, and, upon acquittal or conviction, plead his jeopardy against further prosecution."

In that case the defendant was charged with the crime of burglary by entering a certain railroad car and train owned by the S.P. Company with intent to commit larceny. The comment upon this allegation was:

"In the information before us, the defendant could make no intelligent preparation for his defense without being prepared to defend against the charge of feloniously entering any car that was in the train, any one of which the prosecuting attorney might select at the trial."

In reviewing this question, we have not overlooked the general rule that an indictment or information charging an offense in the language of the statute is ordinarily sufficient, especially if the offense is purely statutory, but, as was said by the supreme court in United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819:

"To this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute."

An investigation of the cases discloses that the courts are not in agreement as to whether an indictment or information that omits the name of the purchaser of liquor is sufficient or not where each individual sale, as under our law, constitutes an offense, but we are satisfied that the just and fair rule and the one intended to be prescribed by our statute, is that the charge must be "direct and certain as it regards the offense charged," and to be so the information should so identify it as to permit a defendant to...