State v. Alvord

• Decision Date: 24 October 1928
• Docket Number: 5234
• Parties: STATE, Respondent, v. EDWIN T. ALVORD, Appellant
• Court: Idaho Supreme Court

271 P. 322

46 Idaho 765

STATE, Respondent, v. EDWIN T. ALVORD, Appellant

No. 5234

Supreme Court of Idaho

October 24, 1928

INDICTMENT AND INFORMATION-DUPLICITY-CRIMINAL LAW-EVIDENCE-PROOF OF OTHER OFFENSES-WITNESSES-IMPEACHMENT-INTOXICATING LIQUOR-FURNISHING LIQUOR TO MINORS-INSTRUCTIONS.

1. Information charging that defendant gave and furnished and caused to be given and furnished intoxicating liquor to a minor in violation of C. S., sec. 2621-A, as added by Laws 1925, chap. 171, did not join two distinct offenses in one count, since the doing and causing a thing to be done are the same in law, and an allegation charging defendant with doing or causing something to be done is good in that form although statute employs disjunctive conjunction "or" instead of "and."

2. When violation of criminal statute may be committed in one or more of several ways specified, an indictment or information may in single count charge commission of offense in any or all of ways specified by statute, if different acts alleged are not repugnant and constitute component parts of one transaction.

3. Information charging defendant under C. S., sec. 2621-A, as added by Laws 1925, chap. 171, with giving and furnishing liquor to a minor, held to state but single offense, since there is no repugnancy between "give" and "furnish."

4. Evidence of other offenses is admissible when two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other.

5. In prosecution for giving liquor to minor in violation of C. S sec. 2621-A, as added by Laws 1925, chap. 171, it was competent in proving defendant's connection with offense charged to develop as part of res gestae various things that he did on that particular occasion, and evidence that defendant gave liquor to two men and two girls other than prosecutrix at time was admissible.

6. Proof of conviction of witness of crime may be shown as well by examination of witness as by record.

7. Conviction of witness of misdemeanor is not admissible for purposes of impeachment.

8. Where accused was asked on cross-examination regarding previous conviction of felony, under C. S., secs. 8038, 8044 in answering that his conviction was of possession of liquor only, without denying that it was second offense for which he would be guilty of felony under section 2625, he invited error, if there was any, and cannot complain on appeal.

9. Defendant was guilty of giving and furnishing liquor to a minor in violation of C. S., sec. 2621-A, as added by Laws 1925, chap. 171, where he handed bottle or glass to minor and she took it, even though minor did not choose to drink same.

10. In prosecution under C. S., sec. 2621-A, as added by Laws 1925 chap. 171, for giving and furnishing liquor to a minor, instruction defining word "furnish" as meaning to "offer," if erroneous, held harmless, where facts showed that defendant actually delivered liquor to minor.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Conviction of unlawfully furnishing intoxicating liquor to minor. Appeal from judgment and from order denying a new trial. Affirmed.

Affirmed.

W. A. Ricks, for Appellant.

An information which charges that the defendant gave and furnished, and caused to be given and furnished, intoxicating liquor to a minor is duplicitous and vulnerable on demurrer. (Creel v. United States, 21 F.2d 690; Albrecht v. United States, 273 U.S. 1; 47 S.Ct. 250, 71 L.Ed. 505.)

When a man is put on trial for one offense, he is to be convicted, if at all, on evidence showing him guilty of that offense alone, and ordinarily proof of his guilt of other offenses, not connected with offense charged, must be excluded. (State v. Garney, 45 Idaho 768, 265 P. 668; People v. Rogers, 324 Ill. 224, 154 N.E. 909; People v. Governale, 193 N.Y. 581, 86 N.E. 554; People v. Gibson, 255 Ill. 302, 99 N.E. 599, 48 L. R. A., N. S., 236 (the rule followed in State v. Garney, supra); Limbaugh v. Commonwealth, 149 Va. 383, 140 S.E. 133; Wooton v. Commonwealth, 200 Ky. 588, 255 S.W. 153; State v. Haynes, 116 Ore. 635, 242 P. 603; Cucchia v. United States, 17 F.2d 86; People v. Little (Cal. App.), 259 P. 458; People v. Stark, 324 Ill. 289, 155 N.E. 271; Robinson v. State (Okla. Cr.), 254 P. 986; 8 R. C. L., p. 198, sec. 194.)

Testimony as to distinct, substantive offenses is not competent to prove habit or predisposition of accused, or to show that he committed crime charged. (People v. Rogers, supra; People v. Stark, supra; State v. Garney, supra.)

Evidence of similar offense in prosecution under liquor laws is inadmissible. (People v. Jones, 78 Cal.App. 554, 248 P. 964; Anderson v. United States, 18 F.2d 404; People v. Jabine, 324 Ill. 55, 154 N.E. 430; State v. Gendusa, 122 Kan. 520, 253 P. 598; Little v. Commonwealth, 221 Ky. 696, 299 S.W. 563; People v. Thompson, 238 Mich. 171, 213 N.W. 159; Parkinson v. State, 145 Miss. 237, 110 So. 513; State v. Kurtz, 317 Mo. 380, 295 S.W. 747; State v. Mohr, 316 Mo. 204, 289 S.W. 554.)

Giving liquor to a minor to be delivered to a third person does not constitute giving and furnishing liquor to a minor. (Wallace v. State, 54 Ark. 542, 16 S.W. 571; State v. McMahon, 53 Conn. 407, 55 Am. Rep. 140, 5 A. 596; State v. Walker, 103 N.C. 413, 9 S.E. 582.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

If several crimes are intermixed and blended with one another or are so connected that they form an indivisible transaction, and full proof by testimony, either direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme. (Johnson v. State (Okla. Cr.), 249 P. 971; Thaler v. United States, 261 F. 746; Tolbert v. State (Okla. Cr.), 245 P. 659; People v. Ciulla, 44 Cal.App. 719, 187 P. 46; Tinker v. State, 95 Tex. Cr. 143, 253 S.W. 531; Travelstead v. State (Tex. Cr.), 287 S.W. 53; 22 R. C. L. 1204.)

Whether or not leading questions are permissible rests primarily within the discretion of the trial court, and its rulings will not be reviewed except on a showing of a grave abuse of discretion. (McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; State v. Gibbs, 45 Idaho 760, 265 P. 24; State v. Garney, 45 Idaho 768, 265 P. 665.)

The giving, offering or furnishing liquor to a minor is a crime. (Blakemore, 3d ed., sec. 449; C. S., sec. 2621a; Rhodes v. State (Okla. Cr.), 234 P. 645; State v. Stock, 163 Minn. 271, 203 N.W. 964; State v. Smith, 75 Mont. 22, 241 P. 522.)

HARTSON, District Judge. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

HARTSON, District Judge.

--Edwin T. Alvord was convicted of "unlawfully furnishing intoxicating liquor to minor person," in violation of C. S., sec. 2621-A (chap. 171, 1925 Sess. Laws). He appeals from the judgment and from an order denying a motion for a new trial.

Appellant demurred to the information, asserting duplicity, and sought an order requiring the state to elect upon which count it would stand. The information accuses defendant of the crime of unlawfully furnishing liquor to a minor person, committed as follows:

"That said Edwin T. Alvord . . . . on or about the 10th day of April, A. D. 1927, and prior to the filing of this information . . . . did then and there wilfully, unlawfully and feloniously give and furnish and cause to be given and furnished intoxicating liquor to the aforesaid Belvia McCullough, the said Belvia McCullough being then and there a minor female person. . . ."

C. S., sec. 2621-A, provides:

"Any person who sells, gives or furnishes, or causes to be sold, given or furnished, intoxicating liquor to any minor is guilty of a felony."

It is contended by appellant that two distinct offenses were joined in one count, viz.: (a) the giving and furnishing and (b) the causing to be given and furnished. We think the contention unsound. The doing and causing a thing to be done are the same in law; therefore a count is not double which charges both. (Bish. Cr. Proc., sec. 434; Joyce on Indictments, sec. 536.) Where a statute makes it an offense to do a thing, or cause such a thing to be done, there is but a single offense. (La Beau v. People, 33 How. Pr. (N. Y.) 66 (affirmed, 34 N.Y. 223); Glass v. United States, 222 F. 773, 138 C. C. A. 321; United States v. Nunnemacher, 27 F. Cas. No. 15,903.) An allegation charging the defendant with doing or causing something to be done is good in that form, although the statute employs the disjunctive conjunction "or" instead of "and." (United States v. Hull, 14 F. 324.) The trial court did not err in respect of this contention.

It is further contended that there is duplicity in the conjunctive allegation of "give" and "furnish." There is but one offense charged, and but one offense was attempted to be proved.

"When a violation of a criminal statute may be committed in one or more of several ways specified, an indictment or information may, in a single count, charge the commission of the offense in any or all of the ways specified by the statute, if the different acts alleged are not repugnant, and constitute component parts of one transaction." (State v. Brown, 36 Idaho 272, 211 P. 60.)

"The word 'furnish' is broader than the words 'sell' and 'give,' as they are used in the statute, and if said word had been the only one used in the statute as it now reads--that is, if the words 'sell' and 'give' were not therein used and in their place the word 'furnish' was alone employed--it would not for a moment be doubted that a person who had sold or given any...