State v. O'Brien
| Decision Date | 17 June 1907 |
| Citation | 90 P. 514,35 Mont. 482 |
| Parties | STATE v. O'BRIEN. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; F. C. Webster, Judge.
W. P O'Brien was convicted of violating the local option law and he appeals. Affirmed.
H. L Myers, W. P. Baker, R. Lee McColloch, and Geo. T. Baggs, for appellant.
Albert J. Galen, Atty. Gen., Dan Yancey, Asst. Atty. Gen., for the State.
This cause originated in a justice's court in Ravalli county, by the filing therein by one J. H. Croughan on May 27, 1905, of a complaint charging the defendant with the sale of spirituous and intoxicating liquor on May 20, 1905, in violation of chapter 10, tit. 7, pt. 3, of the Political Code, known as the "local option law." The charging part of the complaint is that the defendant "did then and there willfully and unlawfully directly sell and vend to said J. H. Croughan spirituous and intoxicating liquor, contrary to the provisions of chapter 10, tit. 7, pt. 3, of the Political Code of the state of Montana, said law having become operative in said Ravalli county on January 7, 1904, by reason of an election previously held therein as provided in said chapter and the election laws of the state of Montana," etc. The defendant's demurrer to the complaint, on the ground among others that the facts do not constitute a public offense, having been overruled, he moved for a dismissal of the case, on the ground that the justice was without jurisdiction to try him-for that the offense, if committed at all, was committed in Ward township, and he was entitled to a trial by jury from that township, whereas the jurisdiction of the justice was confined to cases arising in Stevens township, wherein he (the justice) resided. The motion was supported by affidavits showing that the defendant resided and was engaged in business in Ward township. This motion was denied. Thereupon a change of venue was, upon motion of the defendant, granted, and the cause transferred to Corvallis township. A trial by jury having been waived, the defendant was found guilty and sentenced to pay a fine. An appeal was then taken to the district court. The questions presented by the demurrer and motion were submitted to that court and again overruled. Thereupon the defendant moved the court to correct the transcript of the justice's docket, filed with the record, so as to make it recite the proceedings of the justice in accordance with the facts; the motion being supported by affidavits alleging that, upon finding the defendant guilty, the justice proceeded at once to pronounce judgment without fixing a time for that purpose, as provided by statute, which fact the transcript did not show. At the same time a motion was submitted asking that the cause be dismissed, on the ground that the justice did not in fact pursue the statute in fixing a time for the rendition of the judgment, and that, having for this reason lost jurisdiction of the case, the district court had no jurisdiction other than to dismiss it. These motions were denied. A trial then had resulted in a verdict of guilty. The defendant has appealed from the judgment imposing a fine, and from an order denying him a new trial.
In addition to the questions presented by the demurrer and the various motions referred to, all of which are submitted to this court for decision, the defendant has assigned many errors on the admission and exclusion of evidence and upon instructions given by the court, as well as those requested by the defendant and refused. It is also insisted that the court committed prejudicial error in permitting R. A. O'Hara, Esq., to be entered as associate counsel for the state and assist in the trial.
1. It is contended, first that the court erred in refusing to correct the transcript of the justice so as to make it speak the facts touching the rendition of the judgment. It is said that, if the correction had been made, it would have appeared that the justice, disregarding the mandate of the statute (Pen. Code, § 2710) that he must appoint a time, not more than two days nor less than six hours after a plea or verdict of guilty, for the rendering of judgment, rendered judgment immediately; that the result was that no judgment was in fact rendered; that there was therefore no judgment to appeal from; and hence that the complaint should have been dismissed. We do not think it was within the power of the court to add anything to the docket of the justice. If in any case the transcript does not speak according to the facts, and it becomes necessary to have it amended, the court should upon a proper showing direct the justice to make the correction. The district court does not, on appeal from a justice's court, sit as a court of review, but tries the cause de novo. Code Civ. Proc. § 1761; Pen. Code, § 2717; Missoula El. Light Co. v. Morgan, 13 Mont. 394, 34 P. 488. After the cause reaches that court, the trial and other proceedings are the same as in causes originating there; its jurisdiction depending upon the fact of jurisdiction by the justice's court of the subject-matter and of the parties. That the justice had jurisdiction of the offense charged here is clear. Code Civ. Proc. § 68. That it had jurisdiction of the defendant is also clear, because the record discloses his plea of not guilty and his presence at trial and judgment. The defendant, having by his appeal asked for a trial de novo, cannot be heard to insist that the district court should confine its action thereon to a review of errors and irregularities in the proceedings of the justice, and determine the case accordingly. By taking the appeal, the irregularities attending the rendition of judgment were waived. The motion was properly denied.
2. It is argued that the demurrer should have been sustained, because the complaint is insufficient to state an offense, in that it does not allege that all the steps necessary to make the statute operative were taken by the authorities of Ravalli county upon the initiative of the electors, as required by the provisions of the statute. The statute provides that upon the presentation of a petition, signed by one-third of the qualified electors of the county, the board of commissioners must call an election to be held within 40 days from the reception of the petition to determine whether or not spirituous or malt liquors, wine, or cider, or any intoxicating liquor or drinks may be sold within the county. Pol. Code, § 3180. If it is ascertained that the petition is sufficient, notice must be given by publication for four successive weeks in such newspapers of the county, as the board may direct. Section 3181. Then follow provisions prescribing the form of the ballot, and directing the establishment of polling places, the canvass of the returns, and the publication of the result, after the record is made up by the board. The election is held under the general election laws, but special registration is not required. Sections 3182, 3183. The result must be published for four successive weeks in the paper in which the notice of election was given. The statute becomes operative at the expiration of the time of publication. Section 3184. From that time sales are prohibited, and violations of the act are punished as misdemeanors. Sections 3186, 3187. Section 3188 provides: "Any election held under the provisions of this chapter may be contested in the same manner as prescribed in Title III, Part III, of the Code of Civil Procedure."
Many of the states have enacted such statutes, and, while they differ as to the mode of the election and the method by which notice of the result is given, their provisions are substantially the same as those of our statute. The operation of such a law being made effective, not by its own terms upon the approval of the Governor, but by the observance of certain conditions precedent by the people and officials of any county, all these conditions precedent must be fulfilled. The courts of the different states differ widely, however, upon the question whether in charging a violation of the statute it is incumbent upon the state to allege in detail the observance of these conditions. In Kentucky and Texas this is the rule. Commonwealth v. Throckmorton (Ky.) 32 S.W. 130; Commonwealth v. Cope, 107 Ky. 173, 53 S.W. 272; Commonwealth v. McCarty (Ky.) 76 S.W. 173; Stewart v. State, 35 Tex. Cr. R. 391, 33 S.W. 1081; Hall v. State, 37 Tex. Cr. R. 219, 39 S.W. 117. In Michigan, Maryland, Missouri, Georgia, Pennsylvania, and Virginia the rule is otherwise. People v. Adams, 95 Mich. 541, 55 N.W. 461; People v. Whitney, 105 Mich 622, 63 N.W. 765; Crouse v. State, 57 Md. 327; Slymer v. People, 62 Md. 238; Mackin v. State, 62 Md. 244; Combs v. State, 81 Ga. 780, 8 S.E. 318; Rauch v. Commonwealth, 78 Pa. 490; State v. Searcy, 39 Mo.App. 393; s. c., 111 Mo. 236, 20 S.W. 186; Thomas v. Commonwealth, 90 Va. 92, 17 S.E. 788. In Maryland, Virginia, and Georgia an indictment in the ordinary form, concluding, "contrary to the form of the statute," etc., is deemed sufficient. The courts of these states proceed upon the theory that the fact that an election has been had making the law operative in the particular county, and the regularity of the proceedings in connection with it, including the proclamation of the result, are matters to be determined by the court, and issues upon them may not properly be submitted to the jury. In Combs v. State, supra, the court took judicial notice of the fact that the law had become operative. The Supreme Court held this to be proper, and hence that an instruction to the jury that the law was operative in the county where the sale was made was correct. The same rule is recognized in Pennsylvania and Virginia. See cases cited. In Maryland, while it is held that the court may...
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