State v. Colvard

• Decision Date: 23 April 1921
• Citation: 33 Idaho 702,197 P. 826
• Parties: STATE, Respondent, v. ROSCOE A. COLVARD, Appellant
• Court: Idaho Supreme Court

197 P. 826

33 Idaho 702

STATE, Respondent, v. ROSCOE A. COLVARD, Appellant

Supreme Court of Idaho

April 23, 1921

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

Appellant was convicted of the crime of unlawfully possessing intoxicating liquor. Affirmed.

Affirmed.

Eustace & Groome, for Appellant.

Appellant is charged with the violation of Senate Bill No. 50; no reference or attempt is made to place the alleged offense under the provisions of House Bill No. 142, and in order to hold appellant under the judgment of conviction it becomes necessary for the court to read into the provisions of House Bill No. 142 the word "possession," which had been rejected by the legislature, and to strike out the words "for beverage purposes," which had been specifically included by the legislature. (United States v. Wiltberger, 5 Wheat. (U.S.) 76, 5 L.Ed. 37, see, also, Rose's U.S. Notes.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

An order overruling defendant's motion to quash an information or an order overruling defendant's demurrer to information must be excepted to. (Sec. 9008, C. S.; State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Maguire, 31 Idaho 24, 169 P. 175.)

It is within the discretion of the trial court to grant defendant's motion that the court advise the jury to acquit the defendant. (Territory v. Neilson, 2 Idaho 614, 23 P. 537; State v. Haberly, 4 Idaho 484, 42 P. 506; State v. Murphy, 29 Idaho 42, 156 P. 908; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Jones, 28 Idaho 428, 154 P. 378.)

Instructions given on the court's own motion in a criminal case are not deemed excepted to, and in order to be reviewed must be excepted to and properly preserved by a bill of exceptions, or excepted to and incorporated in the reporter's transcript of the proceedings at the trial. (Sec. 9006, C. S.; State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Ray, 32 Idaho 363, 182 P. 857.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

In this case the facts and questions of law are substantially the same as presented to this court in the case of State v. White, ante, p. 697, 197 P. 824. Upon the authority of that case, the judgment of conviction herein is affirmed.

Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.