Roark v. People

• Decision Date: 15 March 1926
• Docket Number: 11483.
• Citation: Roark v. People, 79 Colo. 181, 244 P. 909 (Colo. 1926)
• Parties: ROARK v. PEOPLE.
• Court: Colorado Supreme Court

244 P. 909

79 Colo. 181

ROARK v. PEOPLE.

No. 11483.

Supreme Court of Colorado, En Banc.

March 15, 1926

Error to District Court, Garfield County; John T. Shumate, Judge.

Herman H. Roark was convicted of owning, possessing, and operating a still for the manufacture of intoxicating liquor, and he brings error. On application for supersedeas.

Supersedeas denied, and judgment affirmed.

John L. Noonan and W. F. Noonan, both of Glenwood Springs, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, was convicted of owning, possessing, and operating a still for the manufacture of intoxicating liquor, and sentenced to the penitentiary. To review that judgment he brings error, and the cause is now before us on his application for a supersedeas. His principal contentions, and the only ones requiring consideration, are: (1) chapter 80, Laws 1925, under which the information was filed, is unconstitutional. (2) The court erroneously instructed the jury on the subject of an accessory. (3) Defendant could lawfully have been convicted on one count of the information only, whereas he was convicted on both. (4) A certain offer of testimony was erroneously rejected. (5) The verdicts are unsupported by the evidence.

In a remote section of Garfield county, in a timbered cave in the high, perpendicular banks of Nuckles creek, the sheriff of that county discovered a still, several 50-gallon barrels, some of them filled with mash, some yeast some corn meal, 3 sacks of sugar, 6 gallons of whisky, and a smouldering fire. He established a watch there for the owners. Recalled temporarily to the county seat, he returned to find the still had been in operation during his absence and the whisky was gone. Tracks revealed that the visitors to the place had arrived and departed on horseback. Having seen defendant in the neighborhood the sheriff feigned departure, concealed his automobile, and, returning with a companion, resumed his vigil. Thereupon defendant, a ranchman of that section, one Caywood, his foreman, and two others, arrived on horseback. Caywood carried out a sack of sugar and put it on his horse, and defendant was carrying out the still when the sheriff emerged from his concealment and took charge. In the conversation that ensued defendant said he was getting rid of the outfit for a friend, and Caywood, who carried field glasses, said to the sheriff, in the presence of defendant, 'You sure slipped one over on us that time. We had been watching that car of yours and thought you had gone home.' Defendant and Caywood were arrested, and when they had proceeded about a mile on their way out defendant told the sheriff he had some whisky cached at that point, and asked permission to stop and get a drink. On the trial defendant, who testified in his own behalf, disclaimed all connection with the still. He said, however, that he had discovered it some weeks prior to his arrest, had visited it twice and sampled its mash and product. He testified that on the occasion of his apprehension, while out looking for horses, he had asked his companions to go there with him for a drink, and that on the arrival of the officers all were so intoxicated from drinking a quantity of the mash that he had no very clear recollection of his conversation.

1. Chapter 80, p. 220, Laws 1925, reads:

'An act relating to intoxicating liquors and providing penalties for the violation thereof.

'Be it enacted by the General Assembly of the state of Colorado:

'Section 1. That any person, whether acting in his own behalf, or as the agent, servant, officer or employé of any other person, firm, association or corporation, who shall be the owner of, or who shall operate or knowingly have in his possession any still used, designed or intended for the manufacture of intoxicating liquor, shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment in the penitentiary for not less than two not more than five years, and in all cases of conviction the offender shall pay the costs of prosecution.'

It is first said that this act violates section 21, art. 5, of our Constitution, because the subject of the act is not clearly expressed in the title. Said section reads:

'No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.'

If the act treats of but one general subject and that subject is expressed in the title, the constitutional requirement is met. Golden Canal Co. v. Bright, 6 P. 142, 8 Colo. 144, 149. Particularity is not essential, generality is commendable. Lowdermilk v. People, 202 P. 118, 70 Colo. 459, 463. We have held that the constitutional requirement is met if the wording of the act is 'germane' or 'clearly germane' to the title. In re Breene, 24 P. 3, 14 Colo. 401, 406. Webster defines the word 'germane' as meaning 'closely allied' or 'relevant.' That definition is particularly applicable here, and we can conceive of nothing more closely allied to intoxicating liquor than the machinery for its manufacture, and nothing more relevant thereto than the possession of such machinery. 'An act relating to intoxicating liquor' covers the manufacture of intoxicating liquor. That manufacture includes the indispensable apparatus therefor, and, if the greater includes the less, such title is sufficient for an act which deals with that apparatus. It has been recently held that 'An act prohibiting the manufacture of intoxicating liquor' was a sufficient title for a bill containing provisions identical with said chapter 80. Cyrus v. State, 145 N.E. 497, 195 Ind. 346, 350. The title here under consideration covers everything that could have been covered by the Indiana title. Hence, if that decision is sound, as we think it is, this title is good.

It is also said that the act contravenes section 25, art. 2, of our Constitution, which reads: 'That no person shall be deprived of life, liberty, or property, without due process of law.' The argument here is that a still might be designed for the manufacture of intoxicating liquor, but owned, possessed, and operated for other and perfectly legitimate purposes. The argument is ingenious and interesting, but wholly inapplicable to the facts. 'The plaintiff in error is not in the class alleged to be injured, and cannot, therefore, be heard to question the constitutionality of the act on that ground.' Cavanaugh v. People, 157 P. 200, 201, 61 Colo. 292, 294. We find no question of due process in the instant case.

2. Defendant and Caywood were charged jointly. In...