Moffitt v. People

• Decision Date: 03 May 1915
• Docket Number: 8137.
• Parties: MOFFITT et al. v. PEOPLE.
• Court: Colorado Supreme Court

149 P. 104

59 Colo. 406

MOFFITT et al. v. PEOPLE.

No. 8137.

Supreme Court of Colorado, En Banc.

May 3, 1915

Error to Montezuma County Court; John J. Downey, Judge.

Walter J. Moffitt and another were convicted of selling intoxicating liquor in anti-saloon territory, and they bring error. Affirmed.

H. M. Hogg, of Denver, for plaintiffs in error.

Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen., for the People.

GARRIGUES J.

Walter J. Moffitt and William Syrett were convicted in the county court of selling intoxicating liquor in anti-saloon territory in Montezuma county, and each sentenced to pay a fine of $200 and costs, and bring the case here for review. July 5, 1913 separate informations were filed against each defendant substantially as follows:

'That at a general election held in the county of Montezuma and state of Colorado, on the 3d day of November, A. D. 1908, there was regularly submitted to the qualified voters of election precinct No. 8 in said county and state the question of whether said election precinct No. 8 in said county and state should become anti-saloon territory (and the sale of intoxicating liquors prohibited therein as a beverage); and said question was then and there determined by a majority vote of all the votes cast in said election precinct, and found to be in favor of the same becoming anti-saloon territory.

'That on the 6th day of November, A. D. 1908, the canvassing board of said county met in Cortez, the county seat of said county, and opened and proceeded to canvass the returns of said general election held in said county as stated, and the said board found from said election returns that at said election and in said precinct No. 8 of said county and state that the total number of votes cast therein on the question of said precinct becoming anti-saloon territory was 146, of which number 116 was for said proposition, and 30 against it. Whereupon the said canvassing board found that a majority of all the qualified voters in said election precinct No. 8 in said county of Montezuma and state of Colorado voting on the question of said election precinct becoming anti-saloon territory had voted, 'Yes,' and in favor of said proposition, and the same was declared carried, and a certificate of such finding was made by the said board and recorded by the county clerk in a book kept by him in the county clerk's office in said county.

'That, in accordance with the provisions of the local option law of the state of Colorado, this law went into operation and effect in said election precinct No. 8 in the county of Montezuma and state of Colorado 30 days after the date of said election, to wit, on December 4, A. D. 1908, and the sale of intoxicating liquors was then and there prohibited in said election precinct No. 8 as a beverage, and that said vote has never been reversed, and said proposition has never been resubmitted to the voters of said election precinct No. 8, and that the same has continued to be anti-saloon territory ever since said December 4, A. D. 1908, down to and including the present time, and the sale of intoxicating liquors prohibited therein as a beverage.

'That thereafter William Syrett, late of the county of Montezuma and state of Colorado, on or about the 22d day of June, in the year of our Lord one thousand nine hundred and thirteen, at and within the county and state aforesaid, did then and there wrongfully and unlawfully, by himself (and another), as principal, clerk, and servant, directly and indirectly sell to (P. B. Cates, John J. Downey) J. E. Brown (and E. E. Johnson, jointly) intoxicating liquor as a beverage within the limits of a subdivision and district in said county and state, the same being then and there anti-saloon territory, to wit, within the limits of election precinct No. 8 in the said county of Montezuma and state of Colorado, contrary to the form of the statute in such case made and provided and against the peace and dignity of the same people of the state of Colorado.'

July 14th motion to quash the informations was filed, upon the grounds that they were ambiguous, uncertain, unintelligible, and duplicitous. July 17th motions to quash the informations were denied, and the cases were by agreement consolidated for the purpose of trial, and set for trial July 21st. July 21st the district attorney was permitted to amend by striking that portion of the informations included within the parentheses. Defendants then asked for additional time within which to file a motion to quash the informations as amended and such additional motions as they might be advised, which was denied.

The county clerk and recorder testified without objection as to the election for making precinct 8, in which the sales were charged, anti-saloon territory, giving the result of the election and the contents of the certificate of the board of canvassers. The sales were then proved as alleged, and the people rested. Defendants introduced no evidence denying the sales or that precinct 8 was not anti-saloon territory if the election making it such was valid. They offered to prove, and attempted to show, that some of the proceedings in connection with the election were irregular, and claimed that the territory embraced in precinct 8 was not subject to the provisions of the local option statute. The court allowed testimony to be introduced covering these matters, but later instructed the jury that they should not consider it. The assignments of error argued are:

(a) The court erred in permitting the district attorney to amend the informations by erasure, and in not allowing additional time within which to move to quash the amended informations and to file such additional motions as they might be advised.

(b) That the informations are ambiguous, uncertain, unintelligible, and duplicitous, for the reason that they charge defendant by himself, as principal, clerk, and servant, directly and indirectly did sell to J. E. Brown intoxicating liquor as a beverage within the limits of anti-saloon territory, that he could not by himself act as principal and servant in making the sale, and that it is impossible to determine from the language used in which capacity he is charged as acting.

(c) That the informations charge no offense under the local option law, in that it does not appear therefrom that a proper petition was filed upon which to call the election for the purpose of determining whether or not precinct 8 should be anti-saloon territory.

(d) That the informations against them having been consolidated for trial, there was, in fact, but one information, which charged defendants jointly with the sales therein alleged, that the evidence did not support such joint sale, and that the verdict should have been joint and not several.

(e) That the court erred in permitting the county clerk to testify as to what the records of his office purported to show regarding the vote upon the question of making precinct 8 anti-saloon territory, and that the only manner in which those matters could be properly proved was by the record as provided in section 4099, R. S. 1908.

(f) That the court erred in withdrawing from the consideration of the jury evidence as to the preliminary steps upon which the election was called.

(g) That the court erred in allowing evidence of the sale of beer to go to the jury as supporting the allegation in the information that the defendants had sold intoxicating liquor without proof that the beer sold was, in fact, intoxicating.

(h) That the court erred in permitting the people to introduce evidence of divers sales at other times to different persons other than those alleged in the informations.

(i) Misconduct of the trial judge in going into the jury room and communicating privately with the jury without the knowledge and out of the presence of the defendants or their attorneys.

(j) The giving and refusing of instructions to the jury.

1. The court committed no error in permitting the district attorney to amend the informations by striking the...