Lyte v. District Court of Salt Lake County

• Decision Date: 09 November 1936
• Docket Number: 5842
• Citation: 61 P.2d 1259,90 Utah 369
• Court: Utah Supreme Court
• Parties: LYTE v. DISTRICT COURT OF SALT LAKE COUNTY et al

61 P.2d 1259

90 Utah 369

LYTE v. DISTRICT COURT OF SALT LAKE COUNTY et al

No. 5842

Supreme Court of Utah

November 9, 1936

Opinion denying rehearing in 90 Utah 377, 62 P.2d 1117.

Original certiorari proceeding by Sam Lyte, sometimes known as Sammy Lyte, against the District Court of Salt Lake County, State of Utah, and others, to review a judgment of such court.

CAUSE REVIEWED REMANDED, with directions.

J. R Haas and N. E. Callister, both of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and H. D. Lowry and B. E. Roberts, Deputy Co. Attys., both of Salt Lake City, for defendants.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, JJ concur. WOLFE, being disqualified, did not participate.

OPINION

ELIAS HANSEN, Chief Justice.

Sam Lyte applied for and was granted a writ of certiorari to review a judgment of the district court of Salt Lake county Utah. The judgment brought in question directed that Sam Lyte "be confined in the Salt Lake County Jail for a term of six months on the first count in the complaint and that you be confined in the Salt Lake County Jail for a term of six months on the second count in the complaint, the second term of six months to commence at the expiration of the first six months." The record which was certified to this court, pursuant to the writ, shows that a verified complaint was filed in the city court of Salt Lake City, Utah, charging:

"That the said Sammy Lyte * * * on the 9th day of April, A. D. 1936 * * * did commit the crime of keeping for sale alcoholic beverages, in violation of section 114, chapter 43, Laws of Utah 1935, he having theretofore been convicted of a violation of said section 114, as follows, to-wit: That the said Sammy Lyte, at the time and place aforesaid, did wilfully and unlawfully keep for sale an alcoholic beverage, to-wit: whiskey, at the Tourist Hotel, 48 West 1st South Street, Salt Lake City, Salt Lake County, State of Utah; he, the said Sammy Lyte, prior to the commission of the offense above set out, to-wit: on the 17th day of February, 1936, in a criminal action before the City Court of Salt Lake City, Salt Lake County, State of Utah, wherein the State of Utah was plaintiff, and he, the said defendant Sammy Lyte, was defendant, having been duly convicted of a violation of section 114, chapter 43 Laws of Utah 1935; * * * Second Count: Did commit the crime of selling alcoholic beverages, in violation of section 114, chapter 43, Laws of Utah 1935, he having theretofore been convicted of a violation of said section 114, Laws of Utah, 1935, as follows, to-wit:

"That the said Sammy Lyte, at the time and place aforesaid, did wilfully and unlawfully sell an alcoholic beverage, to-wit: Did deliver for value one pint of whiskey to W. Johnson; he, the said Sammy Lyte, prior to the commission of the offense set out, to-wit; on the 17th day of February, 1936, in a criminal action before the City Court of Salt Lake City, Salt Lake County, State of Utah, wherein the State of Utah was plaintiff, and he, the said defendant Sammy Lyte, was defendant, having been duly convicted of a violation of section 114, chapter 43, Laws of Utah 1935. * * *"

A trial was had without a jury before the city judge acting as ex officio justice of the peace. The transcript of the proceedings of the city court shows that such "Court finds Defendant guilty of charge as set forth in the complaint." The defendant was sentenced by the city court to serve six months in the county jail. An appeal was taken from that judgment to the district court of Salt Lake county. A trial was there had before the court sitting with a jury, which, at the conclusion of the trial, rendered the following verdict:

"We, the Jurors impaneled in the above case, find the defendant guilty of unlawfully keeping for sale an alcoholic beverage as charged in the first count of the complaint. We also find the defendant guilty of selling an alcoholic beverage as charged in the second count of the complaint."

In due time sentence was imposed, as heretofore indicated in this opinion.

Plaintiff in this court (defendant in the court below), claims that the district court exceeded its jurisdiction in imposing two sentences of six months each upon him. It is urged by Mr. Lyte that the complaint charges but one offense stated in two counts; that if two separate offenses are stated in the complaint, then and in such case the act purporting to authorize such practice contravenes article 6, § 26, subds. 6 and 18, Constitution of Utah. It will be observed that the city court found "defendant guilty of charge as set forth in the complaint," and imposed a sentence of six months in jail. It would seem that the city judge, ex officio justice of the peace, construed the complaint as charging but one offense because he found defendant guilty of a charge and imposed but one sentence, the term of which is fixed by the act under which the prosecution was had. It, however, is not urged by Mr. Lyte that the city court found him guilty of but one offense, and that therefore he was, as a matter of law, acquitted of the other charged offense. If such a contention were advanced and could be successfully maintained, it might well follow that the appeal to the district court was merely from the charge of which he was convicted in the city court, and therefore the district court was without jurisdiction to try or sentence him for more than one offense. As no questions such as those suggested are here argued, we shall not pass upon them in the present opinion. We suggest such questions because they are inherent in the record before us. The case may be ruled and the proper result reached by disposing of the constitutional question presented. Moreover, the parties seem to be agreed that the constitutional question should be determined so that future prosecutions may be had in conformity with the conclusions reached. We shall, therefore, rule this case on the constitutional question.

It is clear that the complaint charged two offenses. It is so contended on behalf of the state. It is further contended by the state that two separate and distinct offenses may be charged in one complaint or information. In support of the state's position in such respect, reliance is had upon section 189, c. 43, Laws Utah 1935. It is there provided:

"Charges of several violations of this act committed by the same person may be included in one and the same complaint or information, but they must be separately stated and the warrant of arrest issued thereon must refer to each charge, but a failure to make such references shall not affect the validity of the warrant.

"A conviction for one or more of several offenses, set out in the same complaint or information, may be made under this act, although such offenses may have been committed on the same day, but the increased penalty or punishment hereinbefore imposed because of a prior conviction imposed shall only be incurred or imposed in the case of offenses committed on different days and after information or complaint laid for a first offense."

The constitutional provisions which Mr. Lyte claims the statute just quoted offends against read thus:

Article 6, § 26: "The Legislature is prohibited from enacting any private or special laws in the following cases: * * *

"6. Regulating the practice of courts of justice. * * *

"18. * * * In all cases where a general law can be applicable, no special law shall be enacted."

We have a general statute which provides:

"The information or indictment must charge but one offense, but the same offense may be set forth in different forms under different counts. * * *

"The defendant or defendants, or any of them, may be convicted of any offense charged in any of the counts joined as prescribed in the next preceding section; provided, that no person shall be convicted of more than one crime upon the same facts constituting such crime." Laws of Utah 1935, c. 118, 105-21-31 and 105-21-32, pp. 226, 227.

The provisions last quoted were enacted by the same Legislature that passed the act under which this prosecution was had. Those provisions, however, substantially in their present form, have been a part of our Code of Criminal Procedure long before the enactment of 1935. R. S. Utah 1898 title 76, c. 22, §§ 4734, 4735, pp. 978,...