Perue v. State

• Decision Date: 21 September 1931
• Docket Number: 1688
• Citation: 43 Wyo. 322,2 P.2d 1072
• Parties: PERUE v. STATE
• Court: Wyoming Supreme Court

2 P.2d 1072

43 Wyo. 322

PERUE v. STATE

No. 1688

Supreme Court of Wyoming

September 21, 1931

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

William H. Perue was convicted of having possession of a still designed and intended to be used for him for the manufacture of intoxicating liquor, possession of intoxicating liquor and the unlawful sale of intoxicating liquor, and he brings error.

Reversed and Remanded.

For the plaintiff in error there was a brief and oral argument by Mr F. E. Anderson, of Laramie, Wyoming.

The court erred in requiring defendant to be tried on three separate and distinct charges. The court erred in permitting the introduction and display of jugs, bottles and other articles in the presence of the jury, and statements as to the alcoholic content of liquids in some of said containers. The jury was permitted to talk to third parties and read newspaper accounts of the trial, all of which were prejudicial and erroneous. People v. Brannigan, 21 Cal. 337; People v. Backus, 5 Cal. 275; People v. Thornton, et al., (Cal.) 16 P. 244; State v. Bailey, (Kan.) 3 P. 769; Heller v. People, (Colo.) 43 P. 124; State v. Morgan, (Utah) 64 P. 356; Selstrom v. State, (Okla.) 123 P. 557; State v. Cotts, 33 S.E. 605. Where a misconduct of the first jury is shown, the state is required to show affirmatively that no injury resulted. Jones v. State, 68 Ga. 760; Woods v. State, 43 Miss. 364; Riley v. State, 28 Tenn. 646; Odell v. State, 65 Tenn. 159. Error committed at the trial will be presumed to have injured accused, unless the contrary clearly appears. People v. Murphy, 47 Cal. 103; State v. Strodmeyer, 83 P. 22; U. S. v. Gilbert, F. Case No. 15, 204; People v. Stokes, (Cal.) 37 P. 207; State v. McCormick, (Wash.) 54 P. 764; People v. Chin Non, (Cal.) 80 P. 681; State v. Bland, (Ida.) 76 P. 780; Walker v. State, 37 Tex. 366; Carter v. State, 77 Tenn. 440. The newspaper statement referred to described the articles introduced in evidence.

For the defendant in error there was a brief by James A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and George W. Ferguson, Assistant Attorney General, and oral argument by Mr. Jackson.

Laws 1921, Ch. 117, Sec. 30, permits the joinder of counts for violations of the act in one information. Trask v. People, 83 P. 1010, cited by defendant is not in point. All articles received as exhibits at the trial were identified; there was evidence of specific sales by defendant. Defendant was sentenced only on one count; the sufficiency of the evidence is not discussed in the brief of plaintiff in error. No irregularities in the proceedings of the jury were established. The contention that the reading of the newspaper prejudiced the minds of the jury is without merit. 16 R. C. L. 304, 305. Authorities cited by plaintiff in error on misconduct are not in conflict with the rule cited in Ruling Case Law above. The evidence seems to fully support the verdict and judgment.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

An information was filed in this case against the defendant, William H. Perue, in three different counts, the first count charging him with the possession, on September 5, 1929, of a still, designed and intended to be used by the defendant for the manufacture of intoxicating liquor. The second count charged him with the possession of intoxicating liquor on September 5, 1929, and a third with the unlawful sale of intoxicating liquor on September 4, 1929. Before the introduction of the evidence counsel for the defendant made a motion to require the prosecution to elect upon which count of the information it would proceed to try the defendant. The motion to elect was overruled, and the defendant was convicted upon all three counts of the information. A motion for a new trial was filed, which was overruled, and the defendant was sentenced pursuant to the conviction upon the first count.

Various errors are assigned, including errors arising upon the trial of the case, and on the ground of misconduct of the jury. In the view we take of the case, however, we need but consider one point, namely, as to whether or not, as against a motion to elect, the defendant was properly tried at the same time for a felony, namely, the possession of a still, and misdemeanors, namely, the possession of intoxicating liquor and the sale thereof, as alleged in the information. Counsel for the state maintain that these offenses were properly joined herein on account of the provisions of Section 30, Ch. 117, Session Laws of 1921, which on this point states as follows:

"In any complaint, information, or indictment for the violation of this Act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed."

No authority other than this section is cited in support of the contention of the state. The provisions of the section quoted can have no application here, for they apply only to separate offenses under that act. In the case at bar, the offenses charged in the second and third counts are offenses and misdemeanors under Chapter 117, supra, but the first count of the information charges an offense under an entirely different and separate act, namely, under the provisions of Chapter 28, Session Laws of 1927, which makes it a felony for any person to knowingly have in his possession a still used, designed and intended to be used for the manufacture of intoxicating liquor, and repeals all acts and parts of acts in conflict with the provisions of that chapter. Nothing is said in the latter act that a charge thereunder might be joined with a charge under Chapter 117, Session Laws of 1921. And no other statute in this state contains any such provision. We must, accordingly, inquire what the rule of law is as to a joinder of a felony and a misdemeanor in the absence of a statute. That seems to be clear. At common law counts for a felony and a misdemeanor could not be joined. 14 R. C. L. 197; Bishop, Criminal Procedure, Sec. 445. That rule has been upheld by numerous authorities. Tennison v. State, 18 Ala.App. 159, 89 So. 826, 827; Longsine v. State, 105 Neb. 428, 181 N.W. 175; Davis v. State, 57 Ga. 66; Hilderbrand v. State, 5 Mo. 548; Doyle v. State, 77 Ga. 513; Gilbert v. State, 65 Ga. 449; James v. State, 104 Ala. 20, 16 So. 94; Scott v. Comm., 55 Va. 687, 14 Gratt. 687; Storrs v. State, 3 Mo. 9; State v. Freels, 22 Tenn. 228, 3 Hum. 228; State v. Kurtz, 317 Mo. 380, 295 S.W. 747; State v. England, (Mo.) 11 S.W.2d 1024. The case of State v. Kurtz, supra, is almost exactly in point here, in which violations of the liquor laws constituting felonies under the statute were joined with violations of the liquor laws constituting misdemeanors, and the court specifically held that this was error. In the case of Tennison v. State, supra, the court said as follows:

"The general rule is that counts for felony and misdemeanor may not be joined in the same indictment; nor can there be a joinder, where the legal judgment on each count would be materially different. And in order to authorize the joinder, there must be a concurrence in the nature of the offense, the mode of trial, and the character of punishment."

In the case of Longsine v. State, supra, the information was in two counts, one charging the defendant with kidnapping a child and the second charging him with contributing to the delinquency of the child. The reason why a felony should not be joined with a misdemeanor is set forth by the court in the following language:

"The information charges the defendant with a felony under one section of the statute and with a misdemeanor under another. These charges vary widely in the degree of punishment. Child stealing or kidnapping is punishable by imprisonment in the penitentiary for a period of 20 years, and a violation of Section 1263, Rev. St. 1913, is simply a misdemeanor punishable by a fine not exceeding $ 500, or imprisonment in the county jail not exceeding six months, or both. It is illegal to charge defendant with a felony carrying with it a sentence second only to murder, and join that charge with a misdemeanor punishable only by fine and jail sentence, and under different sections of the statute. The defendant is handicapped in defending the charge of kidnapping carrying with it the enormous penalty, and being at the same time charged with contributing to the delinquency of a female child. It does not matter that...