Mo Yaen v. State

• Court: Arizona Supreme Court
• Writing for the Court: CUNNINGHAM, J.
• Citation: Mo Yaen v. State, 18 Ariz. 491, 163 P. 135 (Ariz. 1917)
• Decision Date: 26 February 1917
• Docket Number: Criminal 417
• Parties: MO YAEN, Appellant, v. STATE, Respondent

163 P. 135

18 Ariz. 491

MO YAEN, Appellant, v. STATE, Respondent

Criminal No. 417

Supreme Court of Arizona

February 26, 1917

APPEAL from a judgment of the Superior Court of the County of Yavapai. Frank O. Smith, Judge. Affirmed.

The facts are stated in the opinion.

Mr Robert E. Morrison, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. Geo. W. Harben, and Mr R. W. Kramer, Assistant Attorneys General, Mr. P. W O'Sullivan, County Attorney, and Mr. Joseph H. Morgan, Deputy County Attorney, for the State.

OPINION

CUNNINGHAM, J.

The appellant was charged with the offense of selling whisky in violation of the prohibition amendment, article 23, state Constitution, and upon a trial of the charge was convicted, and appeals.

The information charging the offense was presented to and filed in the superior court of Yavapai county by the county attorney, on the thirteenth day of January, 1916. The appellant demurred to the information upon a number of grounds, among which, he charges that the information fails to allege that before the filing of the information a preliminary or that defendant waived such preliminary examination. Error is based upon the order overruling the demurrer upon this ground.

If this is such a case as the law requires a preliminary examination to be had before a magistrate prior to the filing of an information, the failure to make such examination is not a ground for demurrer, but is a ground for a motion to wash the proceedings and abate the action. If the examination was or was not a necessary step in the proceedings, certainly such step need not be alleged on the face of the information. Unless a defect appears on the face of a pleading, a demurrer to the pleading does not reach the defect. However, the offense charged is a misdemeanor, and a preliminary examination is not essential to a proper commencement of the action.

The information sufficiently charges the accused with having committed the offense of selling whisky on the twenty-fourth day of November, 1915, at Yavapai county, to J. S. Sykes and J. W. Rieff. The information substantially examination was had before any committing magistrate, conforms to the requirements of the statutes, and the facts stated therein are sufficient to constitute a public offense; consequently the trial court correctly overruled the demurrer.

The undisputed facts in the case are: That J. S. Sykes and J. W. Rieff, hereafter referred to as the prosecuting witnesses, were detectives engaged in gathering evidence for the purpose of prosecuting violators of the prohibition laws of the state. They had been occupied in such business about Prescott for some time prior to November 24, 1915. During such time they frequently got their meals at the City Restaurant, in Prescott, and the accused as a waiter at such restaurant, served their meals to them. On the morning of November 24, 1915, J. W. Rieff, in the presence of J. S. Sykes, gave the accused one dollar, and at the same time requested the accused to buy for them, said Rieff and Sykes, a bottle of whisky with the dollar. The accused, after making some objections, took the dollar and promised them he would get the whisky, or try to get it for them. About 5 o'clock on the afternoon of the same day, the prosecuting witnesses returned to the restaurant for their evening meal, where the accused gave them a pint bottle of whisky. Such were the facts established when the state rested its evidence in chief.

The testimony of the accused establishes the facts that, after taking the dollar from the prosecuting witness, he (the accused) continued in his work until 1 o'clock, when, as was his custom, he left his work until about 5 o'clock. During this rest period, he went out on the streets to look for a colored boy who accused knew sold whisky and from whom the accused had previously bought a bottle of whisky. Accused found the colored boy, and asked him if he (the colored boy) had whisky, and the answer was that he had. The colored boy went up the street, was gone a few minutes, and returned with a bottle in a paper bag, or wrapped in paper. The package was given to the accused, and in return therefor the accused gave the colored boy the one dollar which the prosecuting witnesses had given to him early the same morning. The accused returned to the City Restaurant with the bottle of whisky, and, when the prosecuting witnesses came for their next meal, gave them the whisky.

When the prosecuting witnesses had testified, the state rested its case in chief. The defendant moved for a directed verdict upon the grounds that the evidence did not warrant a conviction. The motion was denied. The defendant then, as a witness in his own behalf, testified as indicated above. The state offered one witness in rebuttal of immaterial matters. Thereupon the defendant renewed his motion for a directed verdict, and again the motion was denied. Both orders denying the motions for a directed verdict are assigned as error.

The court instructed the jury, among other things, as follows:

"I charge you that even though you should find from the evidence that said defendant only accepted money from said Sykes and Rieff to pay for whisky for them at their request, and if you further find beyond a reasonable doubt that said defendant did take money from said Sykes and Rieff for said purpose, and did procure at their request and did deliver such whisky to them, then I charge you that said defendant is guilty, and you should so find by your verdict."

"I charge you that under the law one who accepts money from another for the purpose of buying liquor for him, and does buy the liquor and does deliver the liquor to the party who gave the money to purchase it, is guilty of the offense charged in the information, because in such a case the party who procures and delivers the whisky is concerned in the commission of a crime and is aiding and abetting in its commission, and, under the law of Arizona, is a principal in any crime so committed, and is equally guilty with the one who actually sold the liquor and took the money.

"I therefore charge you that if you find, beyond a reasonable doubt, that the defendant accepted money from Sykes and Rieff, or either of them, to procure whisky for them, and did thereafter procure the whisky for them and did deliver to them the whisky, you should find the defendant guilty as charged, regardless of where or how the defendant may have gotten the whisky; and it is wholly immaterial whether the defendant had any interest in or received any financial gain from the transaction."

The defendant requested the court to give an instruction announcing a proposition of law the reverse of that announced in the instruction given and set forth above. The giving of said instruction and the refusal to give the instruction requested are assigned as error.

The questions raised by the motions to direct the verdict and the instructions given the jury, and the order refusing the requested instruction, will all be considered by me as presenting the question whether the evidence adduced is legally sufficient to sustain a conviction, and whether the charge.

The law alleged to have been violated is as follows:

". . . Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind to any person in the state of Arizona, . . . shall be guilty of a misdemeanor and upon conviction shall be" punished as prescribed therein. Const., art. 23.

One will readily observe, from a casual reading of this law, that the act condemned as criminal is the act of transferring the property right in the said liquors from the person in the possession of the same to any other person, when such transfer is made within the state of Arizona. No one will dispute this proposition, and, as the possession of personal property is sufficient evidence of the ownership of such property in the possessor, it follows that a transfer of the possession carries with such transfer, presumably, the property right therein.

Under the terms of paragraph 5149, Civil Code of 1913, a legal "sale" of personal property is defined as follows:

"A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price."

This is simply a legislative recognition of the meaning given the word theretofore by the courts, thus:

"'Sale' is a word of precise legal import. It means at all times a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold." 7 Words and Phrases, 6292.

Clearly, the inducement offered or given by the buyer to the seller bringing about the transfer of the property rights in the things included within the above prohibition act is not at all material to the consummation of the crime. The crime denounced by the enactment is committed by the act of a transfer of the property right in the said liquors from the so-called seller to the so-called buyer. A transfer of the possession of such liquors from one party to the other, with the intention that the property right therein shall accompany such transfer of possession, consummates the crime denounced, and no other act is essential to its consummation; consequently, no other criminal act is required to be proven by the prosecution to sustain a conviction.

However the state, in this class of cases, must necessarily connect, by sufficient proof, the person charged with the criminal act of transferring the possession of such liquors with the property right therein from a seller to a buyer, as the words "seller" and "buyer" may be used to refer to the real parties to the...