State v. Cesar

• Decision Date: 04 February 1925
• Docket Number: 5599.
• Citation: 232 P. 1109,72 Mont. 252
• Parties: STATE v. CESAR.
• Court: Montana Supreme Court

232 P. 1109

72 Mont. 252

STATE v. CESAR.

No. 5599.

Supreme Court of Montana

February 4, 1925

Appeal from District Court, Madison County; Lyman H. Bennett, Judge.

L. J Cesar was convicted of selling intoxicating liquor, and he appeals. Affirmed.

M. M Duncan, of Virginia City, for appellant.

L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for the State.

HOLLOWAY J.

L. J Cesar was charged with making an unlawful sale of intoxicating liquor on February 29, 1924, and evidence was introduced tending to prove the charge as made. Over objection the court also admitted evidence tending to prove that the defendant made illegal sales on March 15, 1924, and then denied the defendant's request that the state be compelled to elect whether it would rely for a conviction upon the sale made on February 29 or the sales made on March 15. The defendant was convicted, and has appealed from the judgment and from an order denying his motion for a new trial.

The facts do not present a case for the application of the doctrine of election, but in any event the defendant was not prejudiced by the court's ruling, and cannot complain, for without objection the court instructed the jury that defendant was being tried for an offense alleged to have been committed on February 29, that it was incumbent upon the state to prove "every material fact necessary to constitute such crime," and if the jury "entertained any reasonable doubt upon any fact or element necessary to constitute the crime charged," a verdict of not guilty should be returned. The court also instructed the jury that the evidence of sales made on March 15 "was admitted for the purpose of corroboration, and can only be considered by you for that purpose."

We are satisfied that the jury could not have been misled. The effect of giving these instructions was the same as an election in a proper case. In 16 Corpus Jurius, 863, it is said:

"An election by the trial judge as to which transaction the state will rely on for conviction is a sufficient election, and an instruction submitting one only of the acts, has been held to be a sufficient election."

The real question for determination is, Did the court err in admitting evidence of sales made by the defendant on March 15?

It is the general rule that, upon the trial of one accused of a specific offense, evidence of distinct and independent crimes is not admissible, and the reason for the rule is so apparent that it does not call for any discussion. But the rule is equally well settled that, if evidence tends to prove the commission of the offense charged, it is not rendered inadmissible because it tends also to prove that the accused committed another crime. State v. Hopkins, 68 Mont. 504, 219 P. 1106. The test is, not whether the offered evidence tends to prove an independent offense, but whether it is relevant as tending to prove any fact material to the issue in the case before the court. In numerous criminal cases, other than cases involving alleged violations of the liquor laws, this court has announced the rule that:

"Evidence of other acts or declarations of the accused, of a like nature with those constituting the offense charged, is admissible for the purpose of showing the intent, guilty knowledge, or motive, in corroboration of the testimony as to the offense charged, to prove the identity of the perpetrator of the crime, or to negative the idea that the particular offense complained of was the result of mere accident or mistake, or the employment of a mere loose word or phrase, or to show that the act complained of was a part of a chain or system of crimes." State v. Peres, 27 Mont. 358, 71 P. 162; State v. Newman, 34 Mont. 434, 87 P. 462; State v. Wyman, 56 Mont. 600, 186 P. 1; State v. Pippi, 59 Mont. 116, 195 P. 556.

See, also, State ex rel. Bourquin v. Morris, 67 Mont. 40, 214 P. 332.

Applying the same principle in a case involving an alleged unlawful sale of intoxicating liquor, the authorities generally sanction the admission of evidence of other sales made by the defendant within a reasonable time, although the reason assigned for the ruling in successive cases involving substantially the same facts is not always the same.

The only decided cases to the contrary cited by counsel for defendant are by the court of appeals of California: People v. Clark, 28 Cal.App. 670, 153 P. 719, and People v. Morales, 45 Cal.App. 553, 188 P. 58; although in State v. Alford, 26 N.M. 1, 187 P. 720, the court intimated, without deciding, that evidence of this character is inadmissible.

In State v. Nield, 4 Kan. App. 626, 45 P. 623, it was held error to admit evidence of other sales without limiting the effect of the evidence by an appropriate instruction, and the same ruling was made in State v. Lowry, 29 Wyo. 267, 212 P. 768.

From the record before us it appears that the defendant occupied a two-story building in the town of Laurin, that he rented the rooms in the second story, and used the rear room of the first story for restaurant purposes. The front room of the first story was equipped with a bar and other fixtures and paraphernalia, and there the defendant conducted a soft drink establishment, selling nonintoxicating beverages, according to his testimony. It was in this room on February 29 that the state's witness, Small, purchased from the defendant two drinks. Small testified that in each instance the beverage he purchased and drank was home-brewed beer, an intoxicating liquor. He testified further that in response to a request for moonshine whisky, defendant said "that he did not have any at the present time. He said he had not had any for two or three days. * * * He...