Johnson v. People
| Decision Date | 03 May 1925 |
| Docket Number | 11523. |
| Citation | 246 P. 202,79 Colo. 439 |
| Parties | JOHNSON v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied May 24, 1926.
Error to District Court, Pueblo County; James A. Park, Judge.
Herman Johnson was convicted of possessing and operating a still and he brings error. On application for supersedeas.
Supersedeas denied, and judgment affirmed.
William T. Burris, of Pueblo, for plaintiff in error.
Willism L. Boatright, Atty. Gen., and Louis W. Burford, Asst. Atty Gen., for the People.
Plaintiff in error, hereinafter referred to as defendant, was sentenced to the penitentiary for two to three years on a verdict of guilty of possessing and operating a still. To review that judgment he brings error, and the cause is now before us on his application for supersedeas.
Of the questions raised by the 13 assignments of error we think the following only worthy of consideration: (1) Does the Still Act of 1925, under which this information was filed, violate section 21, art. 5, of the Constitution? (2) Does it violate section 24 of the same article? (3) Should defendant's motion to require the people to elect have been sustained? (4) Was instruction No. 3 erroneous?
1. This question involves the sufficiency of the title of chapter 80, p. 220, Laws 1925. It was answered in the negative in Roark v. People (decided here March 15 1926), 244 P. 909, and need not be re-examined. The act, including its title, is set out in full in that opinion.
2. Said section 24, art. 5, reads:
'No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.'
Section 3701, C. L. 1921, reads in part:
'No person, association or corporation shall, within this state, manufacture for sale or gift any intoxicating liquors;'
Section 3722, Id., makes a first violation of the foregoing a misdemeanor. The position of counsel for defendant is that the act of 1925, which makes the ownership, possession, or operation of a still 'designed or intended for the manufacture of intoxicating liquor' a felony, amends and extends said sections 3701 and 3722. With this contention we are unable to agree. One may own, possess, or operate a still 'designed or intended for the manufacture of intoxicating liquor' without in fact manufacturing any intoxicating liquor, and he may manufacture intoxicating liquor without in fact owning, possessing, or operating a still. But the best reason why the objection here under consideration is not good is because such a change in the law as that effected by the passage of the act of 1925 is not within the purview of said section 24, art. 5, of the Constitution, as fully set forth in Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714.
3. The information was in a single count. It charged that defendant did 'own, operate, and have in his possession a still used, designed, and intended for the manufacture of intoxicating liquor.' Defendant moved to require the people to elect, because 'he does not know of which of these offenses he is charged.' He must have known. He was told by the information that he was charged with all three. The charges were based on a single transaction, and he was found guilty of possessing and operating. Had he owned one still, possessed another, and operated another, or owned at one time, possessed at another, and operated at another, he would have been guilty of three separate offenses. If at a single time and place he owned, possessed, and operated, or possessed and operated, or owned and possessed, he was guilty of but one. A motion to elect is addressed to the sound discretion of the trial court. Roberts v. People, 11 Colo. 213, 215, 17 P. 637. Even where the charges are contained in separate counts the motion will not be sustained if the counts relate to the same transaction. Kelly v. People, 17 Colo. 130, 133, 29 P. 805. This motion was properly overruled.
4. It was established by the prosecution, and is undisputed, that officers went to d...
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