State v. Cooper

• Decision Date: 13 February 1922
• Parties: STATE, Respondent, v. HAMP B. COOPER, Appellant
• Court: Idaho Supreme Court

204 P. 204

35 Idaho 73

STATE, Respondent, v. HAMP B. COOPER, Appellant

Supreme Court of Idaho

February 13, 1922

CRIMINAL LAW-INFORMATION CHARGING MORE THAN ONE OFFENSE-DEMURRER.

Where an information charges more than one offense, contrary to the provisions of the statute, the action of the court in overruling a demurrer thereto, on the ground of duplicity in the information, is error.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Defendant was convicted of having in his possession intoxicating liquor. Reversed and remanded.

Reversed and remanded with directions.

E. P Barnes, for Appellant.

Provisions concerning indictments are applicable to informations. (C S., sec. 8812.) The indictment must charge but one offense. (C. S., secs. 8829, 8870.)

C. S sec. 2642, permitting the prosecuting attorney to include in his information more than one offense under the laws of this state relating to the sale of intoxicating liquor refers only to offenses committed in making sales of intoxicating liquor and cannot be enlarged to include other offenses against the prohibition law. (State v. Bilboa, 33 Idaho 128, 190 P. 248.)

The demurrer to the information was well taken and failure to sustain the same was error. (State v. Bilboa, supra; State v. Hall, 33 Idaho 135, 190 P. 251.)

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

Where an information states two offenses, the error, if any, may be cured by the court's action in compelling the state to elect at the close of the state's case or before the defense has opened its case. (State v. Hall, 33 Idaho 135, 190 P. 251; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Gomes, 9 Kan. App. 63, 57 P. 262; Moss v. State, 3 Ala. App. 189, 58 So. 62; State v. Miller, 263 Mo. 326, 172 S.W. 385; State v. Poull, 14 N.D. 557, 105 N.W. 717; State v. Roby, 128 Minn. 187, Ann. Cas. 1915D, 360, 150 N.W. 793; State v. Harris, 51 Mont. 496, 154 P. 198.)

Neither a departure from the form or mode prescribed by the Compiled Statutes in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid unless the substantial rights of the defendant have been prejudiced. (Secs. 8835, 9084, 9191, C. S.)

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

OPINION

BUDGE, J.

Appellant was convicted of the crime of having in his possession intoxicating liquor. On November 29, 1918, an information was filed against him, charging transportation and possession of intoxicating liquor. A demurrer to the information, upon the ground that more than one offense was charged therein, was overruled, to which ruling the defendant excepted and thereupon pleaded not guilty to the information. At the close of the state's case, the court required the state to elect upon which charge it would stand, and the state elected to rely upon the charge of possession of intoxicating liquor, of which appellant was thereafter convicted and sentenced to serve a term in the county jail and to pay a fine of $ 150.

This appeal is from the judgment and an order denying a motion for a new trial. Appellant makes thirteen assignments of error, attacking the action of the trial court in overruling appellant's demurrer to the information and renewals thereof at each step in the proceedings, in admitting certain exhibits, in giving two instructions, in overruling and denying a motion in arrest of judgment and the motion for new trial.

The principal question presented by this appeal is whether the court erred in overruling appellant's demurrer to the information.

C. S sec. 8829, provides that an indictment must charge but one offense, and by C. S., sec. 8812, it is provided that the statutory provisions relating to indictments shall be applicable to informations. That more...