Rosencrance v. State

• Citation: 239 P. 952,33 Wyo. 360
• Decision Date: 14 October 1925
• Docket Number: 1237
• Parties: ROSENCRANCE v. STATE [*]
• Court: United States State Supreme Court of Wyoming

239 P. 952

33 Wyo. 360

ROSENCRANCE v. STATE ^[*]

No. 1237

Supreme Court of Wyoming

October 14, 1925

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

Ed Rosencrance was convicted of unlawfully selling intoxicating liquors, and he brings error.

Reversed and Remanded.

F. E Anderson for plaintiff in error.

The court erred in receiving the testimony of the committing magistrate as to the testimony of witnesses given at the preliminary hearing, and in receiving the record of the preliminary hearing as evidence at the trial. Opinion evidence of prohibition agents as to the alcoholic content of liquor is incompetent; Berry vs. U. S. 275 F. 680. We concede the rule to be that one familiar with whiskey may after its taste and smell testify whether it is whiskey; Lewinsohn vs. U. S. 278 F. 421. The prosecuting witness was incompetent to testify as to the alcoholic content of liquor; Beaty vs. State, 110 S.W. 449; Norwood vs. State, 86 S. 506; Roberts vs State, 126 S.W. 1129; Richardson vs. State, 208 P. 1052; Marlan vs. State, 219 P. 172. The court erred in receiving evidence that accused had been suspected of conducting a gaming place; Baldwin vs. State, 144 P. 634, and in receiving evidence tending to show that the accused had been conducting a still elsewhere. The prosecution may not initially attack defendant's character; Wigmore on Evidence, Sec. 51, page 127. It is error to cross-examine the accused as to matters not relating to his testimony in chief; Wigmore on Evidence, page 2276; State vs. Saunders, 12 P. 441; People vs Brown, 72 N.Y. 571; or to propound questions insinuating or intimating that accused was guilty of offenses other than as charged; Hager vs. State, (Okla.) 133 P. 263; State vs. LaMont (S. D.) 120 N.W. 1104; Watson vs. State, 124 P. 1101; People vs. Calhoun, 50 N.W. 384. The prosecutor was guilty of misconduct in exhibiting gambling paraphernalia, billies and leather blackjacks, during his examination of accused, and the court committed error in overruling defendant's objection thereto; Hager vs. State, supra; Watson vs. State, supra. The prosecution must confine itself to evidence of the offense charged; Horn vs. State, 12 Wyo. 80; Marshall vs. U. S. 197 F. 511; Dyar vs. U. S. 186 F. 614; State vs. Crowder, 21 P. 208; Stricker vs. State, 222 P. 704. It was error to receive the testimony of the witness, who claimed to have taken the gambling paraphernalia under a search warrant when there was no proof of the issuance thereof; Weeks vs. U. S. 34 S.Ct. 341; State vs. Peterson, 27 Wyo. 185. The court erred in denying defendant's motion to re-open his defense and offer further corroborating evidence, and in denying defendant's motion for a directed verdict.

George Patterson, County Attorney, for defendant in error.

The record of the preliminary hearing is competent to prove the testimony of an absent witness; 22 C. J. 404; 16 C. J. 757; the admissibility of such evidence has the approval of this court; Ivey vs. State, 24 Wyo. 2; Meldrum vs. State, 23 Wyo. 13; a witness familiar with the taste and smell of whiskey is competent to testify and give his opinion as to what it is; 33 C. J. 775. Also a witness who became intoxicated from drinking the liquor in question; Gurley vs. Com. 48 L. R. A. NS 315; 33 C. J. 776. The prosecution offered no evidence of a separate offense and all evidence offered bore upon the specific charge, showing intent, purpose and surroundings, viz.: that defendant struck the prosecuting witness; that he was running a boot leg joint and had tried to purchase immunity from the sheriff. Where the commission of several offenses is a part of the res gestae that forms a part of the transaction; where separate offense show the motive or tends to show a general plan or scheme to commit the offense charged, it is admissible; 16 C. J. 574; Underhill on Evidence, Section 88, page 161; Walker vs. Com. 1 Leigh (Va.) 574; People vs. Molineux (N. Y.) 62 LRA 193; evidence of gambling was admissible to show intent; 16 C. J. 591. Defendant admitted that he had attempted to bribe the sheriff. A defendant submitting himself as a witness may be impeached; Underhill, page 105; Eads vs. State, 17 Wyo. 503; testimony as to finding certain articles in the building where the commission of an offense was charged, was competent to corroborate the testimony of the prosecuting witness, as to what occurred at the time of the offense charged. The question of search and seizure does not come into the case, as no articles obtained in that way were offered in evidence; ruling on the motion to re-open was discretionary. Evidence of defendant's attempt to secure protection from prosecution for acts charged was competent. Defendant admitted that he had supplied the money to purchase the business; the cross-examination did not violate settled rules.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The information in this case charges that the defendant, Ed Rosencrance, on November 18, 1921, in the county of Albany, State of Wyoming, did, in violation of law, "unlawfully and without a permit, possess intoxicating liquor, being moonshine whiskey with an alcoholic content in excess of one-half of one per cent of alcohol, and said Rosencrance, defendant, did then and there unlawfully and without a permit, sell to H. O. Winkler four drinks of intoxicating liquor, to wit moonshine whiskey with an alcoholic content in excess of one-half of one per cent at and for the price of fifty cents per drink; and said Rosencrance, defendant, there and then unlawfully and without a permit, gave to said H. O. Winkler intoxicating liquor, to wit moonshine whiskey with an alcoholic content of more than one-half of one per cent, and that each of the above acts above set forth was then and there prohibited and unlawful."

No stress was laid in the case upon possession of any liquor by the defendant, except in connection with selling and giving it to said H. O. Winkler. The defendant was convicted as charged, and sentenced by the court to imprisonment for three months and to pay a fine of $ 500. From the judgment so rendered the defendant brings the case here by petition in error. The parties will be referred to herein as in the case below. With the consent of the court the county and prosecuting attorney of Albany county was, at his request, permitted to appear and represent the State in this court, in place of the Attorney General.

1. The main testimony in this case was the testimony which H. O. Winkler had given at the preliminary hearing given the defendant. Said witness was absent from the state and was not present at the trial in the district court. He had been cross-examined at the preliminary hearing by counsel who then represented defendant. His testimony had been taken down in shorthand and the shorthand notes extended by the stenographer. These extended notes, the correctness thereof having been sworn to, were read to the jury. But in addition thereto the state used Mr. Brown as a witness, who acted as justice of the peace at the preliminary hearing, and proved certain isolated statements, made by Winkler at said preliminary hearing, by him. It seems to be the rule that where the original testimony is reduced to writing under the sanction of the court, the writing is competent and the best evidence. 22 C. J. 439. Whether or not the testimony at the preliminary hearing was reduced to writing under the sanction of the court does not appear, and we are not called on to decide whether that is permissible under our statutes or whether the former testimony of an absent witness--absent in contemplation of the rules of law--may only be shown by introducing the testimony as taken down by the stenographer. Mr. Brown was not asked as to whether or not he remembered the substance of the testimony of the witness. It does not appear that he did. In the absence of a showing to that effect, he should not have been permitted to testify. This question is fully discussed and decided in the case of Foley v. State, 11 Wyo. 464, 487, 72 P. 627.

2. In reading the record before us, we cannot help but be impressed by the fact that the admission of testimony of other crimes, or attempted crimes of the defendant was influential or controlling in bringing about his conviction in the case at bar. This testimony related (a) to keeping a gambling place in connection with a place for dispensing liquor; (b) to an attempt to buy protection from a police officer for such gambling place, referred to as the Murphy place; and (c) to having or conducting an illicit still and an attempt to buy protection in connection with it from the sheriff of Albany county. The principal errors assigned refer to the admission of such testimony. It is, of course, well known that the commission of a separate crime cannot ordinarily be proved in support of the one named in the information or indictment. That rule is applicable to liquor cases as well as to others. People v. Pagni, (Cal. App.) 67 Cal.App. 303, 227 P. 972. In Commonwealth v. Shepard, 1 Allen 575, the court said of evidence of other crimes:

"It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle that a party is not to be convicted of one crime by proof that he is guilty of another."

In Towne v. People, 89 Ill.App. 258, it was said:

"But the general rule is salutary and a departure from it is perilous, and hence courts are reluctant to extend the exception to the rule beyond well established lines."

The rule with its exceptions was stated in Gibson v State, 14 Ala.App. 111, 72 So....