State v. Fairfield, 22823.

• Decision Date: 09 March 1931
• Docket Number: 22823.
• Citation: 296 P. 811,161 Wash. 214
• Parties: STATE v. FAIRFIELD.
• Court: Washington Supreme Court

296 P. 811

161 Wash. 214

STATE v. FAIRFIELD.

No. 22823.

Supreme Court of Washington

March 9, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Max Fairfield was convicted of a violation of the liquor law, and he appeals.

Affirmed.

Anderson & Richards and Earl W. Husted, all of Everett, for appellant.

Charles R. Denney and F. W. Mansfield, both of Everett, for the State.

FULLERTON J.

The appellant, Max Fairfield, was charged, with another, by an information filed in the superior court of Snohomish county with a violation of certain sections of the statutes relating to intoxicating liquors. The information contained five counts. The jury convicted the appellant on three of the counts, and acquitted him on the other two. From the judgment of conviction he appeals.

The information, omitting the formal allegations and the counts upon which the appellant was acquitted, reads as follows:

'Count I: They, the said Max Fairfield and Judd Spalsbury, in the County of Snohomish, State of Washington, on or about the 6th day of February, 1930, did wilfully and unlawfully manufacture for the purpose of sale, barter and exchange thereof, a quantity of intoxicating liquor other than alcohol, to-wit: about ten gallons of moonshine whiskey; * * *

'Count III: They, the said Max Fairfield and Judd Spalsbury, in the County of Snohomish, State of Washington, on or about the 6th day of February, 1930, did wilfully and unlawfully have in their possession a quantity of intoxicating liquor other than alcohol, to-wit: about ten gallons of moonshine whiskey, which said intoxicating liquor was so held and kept by the said Max Fairfield and Judd Spalsbury for the purpose and with the intent of making and effecting the unlawful sale of the same; * * *

'Count V: They, the said Max Fairfield and Judd Spalsbury, in the County of Snohomish, State of Washington, on or about the 6th day of February, 1930, did wilfully and unlawfully have in their possession and did knowingly permit to be placed and kept on the premises occupied by said Max Fairfield and Judd Spalsbury, a still, used and intended to be used for the manufacture of intoxicating liquor capable of being used as a beverage, and said still was an apparatus, device and combination of utensils capable of being used in separating alcoholic spirits from fermented substances.'

The appellant demurred to the information, and his first assignment of error is based on the order of the court overruling the demurrer. The contention in this behalf is that the acts charged in the several counts do not constitute separate and distinct offenses but constitute different degrees of the same offense, and that to charge different degrees of the same offense in separate counts is to violate the statutory rules governing criminal procedure. But we think the contention mistakes the effect of the several counts. It is hardly possible, of course, that a person could manufacture intoxicating liquors without having the manufactured liquors at some time in his possession, and it is hardly possible that he could manufacture liquors without some device or combination of utensils capable of being used in separating alcoholic spirits from fermented substances and to this extent it can be said that the third and fifth counts are included in the first. But it will be observed that the third and fifth counts have elements that cannot be said to be included in the first. The third count not only charges unlawful possession of intoxicating liquors, but charges, in addition, possession with the unlawful intent to sell the liquors. The fifth count, in addition to charging possession of the still, charges that the appellant did knowingly permit the still to be placed and kept on premises over which he had control. These additional elements are obviously not included in the general charge of manufacturing liquor, and it is equally obvious that no conviction could be had upon them over the objection of the appellant unless they are charged in some form. The Legislature itself has, moreover, denounced these several acts as separate offenses; that is to say, it has denounced it as an offense for any person to manufacture intoxicating liquors, it has denounced it as an offense for any person to have in his possession intoxicating liquors with intent to sell the same, and has denounced it as an offense for any person knowingly to permit any still for the manufacture of intoxicating liquor to be placed or kept on any premises owned or controlled by him. Rem. Comp. Stat. § 7328, and Rem. Comp. Stat. Supp. 1927, §§ 7309, 7347-2. The fact that the Legislature has made them separate and distinct crimes is in itself a sufficient warrant for the court to treat them as separate offenses, even though the one may in some degree trench upon the other. State v. Peck, 146 Wash. 101, 261 P. 779; State v. Heppell, 149 Wash. 517, 271 P. 335. Nor is it a valid objection to say that the offenses cannot be joined in separate counts in the same information. The offenses belong to the same class of offenses,...