State v. Chisnell.

• Decision Date: 11 June 1892
• Parties: State v. Chisnell.
• Court: West Virginia Supreme Court

36 W.Va. 659

State

v.Chisnell.

Supreme Court of Appeals of West Virginia.

Submitted June 2, 1892.

Decided June 11, 1892.

1. Intoxicating Liquors Indictment.

An indictment for selling liquors in violation of section 1, c. 32, ("ode 1891, is good, though it does not name the purchaser.

2. Intoxicating Liquors Indictment Evidence.

Under such indictment of one count by giving evidence tending to show one sale, the State has not made a final election to rely on that sale which will preclude it from proving another to sustain its indictment; and it is not error for the court, in its discretion, to allow evidence of another sale.

3. Intoxicating Liquors Indictment Evidence.

When, in such case, evidence of more than one sale is given, on the request of defendants, at the close of the State's evidence, the court should compel the State to elect the particular sale on which it will rely for conviction, and then exclude evidence of other sales.

4. Intox ecating Liquors Indictment Evidence.

Where, in such case, there is evidence before the jury tending to prove two different sales, it is error for the court to instruct the jury, against objection, that if either sale is proven it should convict.

5. New Trial Remarks of Counsel.

The prosecuting attorney, in argument before the jury, alludes to the failure of the accused to testifyin his own behalf, but on exception he withdraws, and asks the jury not to consider, his remarks in that respect, and the court declares the remarks improper, and directs the jury to disregard and not consider them. This is no ground for new trial.

J J. Jacob and Ij. S. Jordan for plaintiff in error cited 138 Mass. 498; 2 Greenl. Ev." § 86; 5 Mich. 305; 1 Den. 574; 43 Ind. 38; 27 Ohio St. 563; 12 Ind. 18; 22 W. Va. 800.

Attorney-General Alfred. Caldwell, for the State cited the following authorities:

1 On Admission of evidence tending to prove more that, one sale.

20 W. Va. 672; 2 Va. Cas. 26; 1 Gratt. 553; 31 W. Va 162; 26 W. Va. 153; 22 Vt. 74; 57 Ind. 76; 60 N. Y. 559; 23 Vt. 14; 57 Vt. 637; 58 Hun. 607; 2 Whar. Cr. Law (8th Ed.) § 1525; Whar. Cr. Ev. § 104; 4 Den. 235; 113 Ind. 26; 9 Lea 373; 72 Wis. 7; 55 Mich. 586; 31 Kan. 376; 34 Kan. 582; 40 Kan. 87; 1 Gray 463; 109 Mass. 349; 35 Ala. 351; 94 111. 37; 5 Mich. 305.

2 On remarks of prosecuting attorney as ground, for new trial.

Code, c. 152, s. 19; 22 W. Va. 815; 18 Ohio St. 366; 31 Kan. 357; 77 Mo. 274; 110 Mass. 411; 114 Mass. 285; 123 Mass. 241; 141 Mass. 58; 56 Ind. 185; 77 Va, 395; 14 Gratt. 613; 22 Gratt. 924: 25 Gratt. 905; Whar. Cr. PL & Pr. (8th Ed.) § 577; Thorns Trials 1001-1003 and notes.

Brannon, Judge:

In 1890, in the Circuit Court of Ohio county, Julia Chis-nell was convicted and fined for selling beer without license, and she asks reversal of the judgment on several grounds.

The first ground is that after the State had given evidence to show a sale to one Zigenfelder, it was allowed to show before the jury another and different sale to one Arnett, and that the court told the jury it might convict on either sale, if proven. The contention is, that when once the State has given evidence for the purpose of showing a particular sale, it has made its election of the transaction or sale on which it will rest its ease, and can not give evidence of another and different sale, the indictment containing only one count.

The indictment is general, charging no particular sale, naming no person as the purchaser; and I think it is allowable for the State to offer evidence of different sales under such indictment; or rather, the fact, that the State has given evidence tending to show one sale, does not irrevocably bind it as by a final election, and preclude it from proving another sale. The evidence as to a particular sale may turn out to be inadequate; and the indictment not charging any particular sale, why may not the State turn to another sale, and upon it ask conviction? Why may it not have recourse to any number of sales until it secure a sale sustained by sufficient evidence to warrant conviction?

If the indictment charged a particular sale, the State would be tied down to that, but not where the indictment is general. And even if the indictment charged a sale to a particular person, I think the State could, after giving evidence tending to show one sale to him, give evidence tending to show another to him. To hold that giving evidence to prove one sale is a filial election, precluding evidence of another sale, would be to hold that, when the prosecution's evidence as to that sale is deficient, it must lose its case, though full-handed with proof of another sale. There are decisions in Alabama, and perhaps other States, holding this theory of election; but the current of authority is otherwise, as shown in note 4 to section 461 of 1 Bish. Crim. Proc,

But notwithstanding several sales may be given in evi-dence, yet do all of them remain before the jury to the end, for their consideration in reaching a verdict, or should the State be required to choose the particular one on which it will ask a conviction?

The indictment not naming the purchaser gives the defendant no notice of what particular sale is charged against him. He knows this, perhaps, first when the State has proven its case, and then must set about his defence. Hard as this may seem, it is allowable under authorities holding good an indictment charging unlawful sale in a general way without naming the purchaser; and therefore it may be said that, if this be so, a parity of reasoning would justify the practice of allowing the jury to consider evidence relating to two or an indefinite number of sales. This would be very oppressive and hurtful to the defendant, Not until the close of the State's evidence of the sales, in many instances numerous, does he know what sales are imputed to him, and he must at once seek evidence from this quarter and that to repel the case made by the prosecution, and often, for want of time, it is utterly out of his power to furnish such evidence. It is hard enough to allow an indictment wanting that element of certainty most valuable to the defendant as notice of what sale he is called upon to meet, without springing upon him numerous sales, and working serious surprise to the defendant,

There is also this grave objection to permitting evidence of several sales to be considered by the jury: part of the jury may think the evidence of one sale sufficient for conviction, while other jurors think it not sufficient, but thinking another sale fully proven the entire jury unite in the opinion that the defendant is at any rate guilty of a violation of law, when in fact the entire jury is not agreed that the defendant is guilty of one particular unlawful sale; and so really the defendant has not been lawfully convicted by the concurring judgment of twelve jurors of one and the same single offence. He has been indicted for one offence, tried for many, and convicted of one, but of which one of the many we can not say. True, we can hardly presume that the jury would be so careless as to return a verdict without the agreement of all upon the same sale; but it is a danger which would exist under such a practice, which danger is removed by enforcing election.

It is argued that this same danger exist? where there are several counts; but in such case the compulsory election of a number of sales correspondent with the number of counts should be enforced; and besides, there can be no reason for objection to proof of divers sales under divers counts for such sales. The ordinary rules of evidence allow evidence of different sales under several counts.

I am of opinion that in such a case as this, where the State has given evidence tending to show different sales, yet at the close of its evidence, before the defendant opens his defence, the State should be required to elect the particular sale on which it will ask a verdict; and then all evidence relating to other sales should be excluded.

Wharton, in 2 Crim. Law, § 1525, speaking of illicit sales of liquors, says: "It is erroneous to admit evidence of a greater number of offences than there are counts, unless to prove scienter or quo ammo. And the court when several sales are introduced, will compel the prosecution to elect as to the sales on which it relies." Whart. Crim. Ev. § 104.

I regard the rule as properly laid down by the Kansas court, in State v. Schweiter, 27 Kan. 512, that the court may, in its discretion, permit the prosecutor, after offering evidence of a particular offence, to offer also evidence tending to prove several other distinct, substantive offences, yet the court should, on motion, after all the evidence of a number of distinct offences has been introduced, require the proseeutor, before the defendant is put on his defence, to elect upon what particular transaction he will rely for conviction. This doctrine is sustained by the eminent law author, Bishop, in 1 Crim. Proc. §§ 460-462, and note 4 to section 460, and by State v. Croteau, 23 Vt. 14; State v. Smith, 22 Vt. 74; Com. v. O'Connor, 107 Mass. 219; State v. Czarnikow, 20 Ark. 160; Stockwell v. State, 27 Ohio 563; Lebkobitz v. State, 113 Ind. 26 (14 K E. Rep. 363, 597); Boldt v. State 72 Wis. 15 (38 K W. Rep. 177); Long v. State, 56 Ind. 182.

The defendant did not in this case move that the State should elect the sale on which it would stake its case, but she objected to evidence of another sale; and this, it seems to me, called upon the court to give her the benefit of that objection by the only proper order which could give her its benefit, that is, by ordering the prosecuting attorney to make such election.

Moreover, the court instructed the jury that if a sale was made to either Zigenfelder or Arnett, it must convict the accused, thus expressly telling the jury to consider both sales, whereas it should have refused such instruction and compelled the prosecutor to so elect. A similar instruction was held bad in Boldt v. State, 72...