State v. Brames

• Decision Date: 12 November 1929
• Docket Number: 21815.
• Citation: 282 P. 48,154 Wash. 304
• Court: Washington Supreme Court
• Parties: STATE v. BRAMES et al.

282 P. 48

154 Wash. 304

STATE v. BRAMES et al.

No. 21815.

Supreme Court of Washington

November 12, 1929

Department 2.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Peter D. Brames and James Coliniatis were convicted of being jointists, and they appeal. Affirmed.

Parker J., dissenting in part.

C. D Liliopoulos, of Seattle, for appellants.

Ewing D. Colvin and James M. Bailey, both of Seattle, for respondent.

MILLARD J.

The first of two counts of the information in this case charges the four defendants with being jointists. By the second count the defendants Brames and Larigas are charged with a prior conviction of unlawful possession of intoxicating liquor. On the first trial the jury could not agree upon a verdict. Larigas failed to appear for the second trial, and his bond was forfeited. The second trial of the three other defendants resulted in verdict and judgment of conviction against Brames and Coliniatis of being jointists, from which they have appealed. Kost was acquitted.

The two counts of the information are as follows:

'They, the said Tom Larigas, George Kost, Peter D. Brames and James Coliniatis, and each of them, in the County of King, State of Washington, on or about the 1st day of January, A. D. 1927, and on divers days and dates thence and continuously to and including on or about the 4th day of April, A. D. 1928, wilfully, unlawfully and feloniously, did then and there open up, conduct, and maintain a place for the unlawful sale of intoxicating liquor.

'That they, said Peter D. Brames, and Tom Larigas, alias Thomas Larigan, and each of them in the county of King, State of Washington, on the 6th day of April, A. D. 1923, were convicted of the crime of keeping intoxicating liquor in possession before C. C. Dalton, Justice of the Peace in and for Seattle Precinct, King County, Washington.'

Appellants first contend that the information did not conform to the statutory requirements, and that the court erred in overruling their demurrer thereto. It is argued that appellants were convicted under section 7328, Rem. Comp. Stat. of being jointists, a felony punishable by one to five years' imprisonment which cannot be increased because of a previous conviction of violation of the liquor law; and that the second count of the information; charging Brames with a prior conviction of unlawful possession, can only be understood in connection with the aggravated offense under section 7339, Rem. Comp. Stat. The pertinent provisions of our Prohibition Law are as follows:

'* * * It shall be unlawful for any person other than a regularly ordained clergyman, priest or rabbi actually engaged in ministering to a religious congregation, to have in his possession any intoxicating liquor other than alcohol.

'Any person who opens up, conducts or maintains, either as principal or agent, any place for the unlawful sale of intoxicating liquor, be and hereby is defined to be a 'jointist.' Any person who carries about with him intoxicating liquor for the purpose of the unlawful sale of the same be and hereby is defined to be a 'bootlegger.' Any person convicted of being either a 'jointist' or 'bootlegger' as herein defined shall be deemed guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

'A violation of any of the provisions of this section shall constitute a separate, substantive offense irrespective of any other provisions of this act. § 7328, Rem. Comp. Stat.; § 11, ch. 19, p. 60, L. of 1917.

'Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months and every person convicted the third time of a violation of any provision of this act shall, for such third and each subsequent conviction, be punished by imprisonment in the penitentiary for not less than one nor more than five years. Every prosecuting attorney, and every justice of the peace, having knowledge of any previous conviction or convictions of any person accused of violating this act, shall in preparing a complaint, information or indictment, for subsequent offenses, allege such previous conviction or convictions therein, and a certified transcript from the docket of any justice of the peace, or a copy * * * under the seal of the court, shall be sufficient evidence and proof of such previous conviction or convictions.' Section 7339, Rem. Comp. Stat.; section 3194, P. C.; section 15, c. 19, p. 61, L. of 1917.

The language of the statute (section 7339, Rem. Comp. Stat.; section 3194, P. C.) is clear and mandatory. ' Every prosecuting attorney * * * having knowledge of any previous conviction or convictions of any person accused of violating this act, shall in preparing * * * information or indictment, for subsequent offenses, allege such previous conviction or convictions therein.' Determinative of the question of a prosecuting attorney's duty of making such charge of previous convictions in prosecutions for the felony charge of being a jointist is State v. Stack (Wash.) 277 P. 856, 280 P. 930. In that case the information charged the appellant with being a jointist, and also charged the appellant, under the provisions of section 7339, Rem. Comp. Stat., with a prior conviction of the crime of being a jointist. We said, in answer to the appellant's contention that the allegation of prior conviction of being a jointist was prejudicial to, and violated, his constitutional rights: 'However, in State v. Dericho, 107 Wash. 468, 182 P. 597, we held otherwise, and stated: 'So far as we have discovered, similar provisions of other states have been upheld whenever their constitutionality has been questioned.' In a number of later cases we have uniformly upheld the rule thus announced, and are satisfied to adhere to it.'

In State v. Stack, supra, the conviction of the appellant could not result in increased punishment by reason of prior conviction. Neither did appellant Brames, in the case at bar, who was convicted of being a jointist, receive, nor could he have been given, a severer sentence by reason of prior conviction of unlawful possession of liquor.

It is the legislative mandate that the prosecuting attorney, when charging one with the violation of any provision of the Prohibition Law, shall allege in the information prior convictions of violation of any section of that law. Such enactment is within the province of the Legislature, and, as no constitutional rights of the defendants are thereby infringed, we may not question the underlying purpose of that legislation. Whatever the purpose of the Legislature, it was not only proper under section 7339, Rem. Comp. Stat. for the prosecuting attorney to charge the defendant with a prior conviction of violation of the liquor law; it was his duty. Such a rule is harsh, but any rule or enactment that aids in the conviction of an offender is severe--to the guilty. A drastic rule, true, yet it is the law. Only the recidivist has cause for apprehension.

It is next complained that the court erred in not instructing the jury to disregard testimony to the effect that appellants were selling liquor at 200 Fourth Avenue So. The testimony is as follows:

'Q. Where did you first meet the defendants Brames and Coliniatis? A. They were selling liquor at 200 Fourth Avenue South.

'Q. That is several doors below--A. That is about eight or ten doors----

'Mr. Liliopoulos: Just a minute----

'A. --north of 212 Fourth Avenue South.

'Mr. Liliopoulos: Of course it is too late to object now. We are dealing with a skillful witness. But I do think that an instruction, in view of my experience at the former trial, would be quite appropriate at this time, to end a continuation of objections.

'The court: We will have no argument now. Make your objections.

'Mr. Liliopoulos: I object to this as not being responsive to the question.

'The court: Nothing before the court at present. Ask another question. Proceed.'

Doubtless the court would have stricken as not responsive the answer, 'they were selling liquor at 200 Fourth Avenue South,' had a motion been made to strike the same. Appellants made no such motion; the court was not informed what portion of the testimony was objectionable, nor was request made that the court instruct the jury to disregard the testimony. The assignment is without merit.

That the prosecuting attorney was permitted, over objection, to ask appellant Brames on cross-examination concerning his occupation since 1922 is assigned as error.

'Q. From 1922 up to the present time, you have made your living selling intoxicating liquor? A. No, sir, I don't make my living from liquor.'

This was not prejudicial. As stated in State v. Gleen, 135 Wash. 153, 237 P. 292, 293: 'If it be conceded that the court erred in his ruling, it must be held that the error was without prejudice, because the witness answered in the negative.'

Equally without merit is the assignment that the court erred in permitting the prosecuting attorney to cross-examine the appellants regarding the nature and details of prior conviction. The cross-examination disclosed that one of the appellants had been convicted of the crime of being a jointist and an appeal had been taken from the judgment; that the other appellant had been convicted of the crime of unlawful possession of intoxicating liquor. In State v. Steele, 150 Wash. 466, 273 P. 742, 743 the appellants argued that the action of the court was an abuse of the statutory provision (section 2290, Rem. Comp. Stat.) permitting the conviction of a...