State v. Ferguson

• Decision Date: 12 January 1934
• Docket Number: 5012
• Citation: 28 P.2d 175,83 Utah 357
• Court: Utah Supreme Court
• Parties: STATE v. FERGUSON

28 P.2d 175

83 Utah 357

STATE v. FERGUSON

No. 5012

Supreme Court of Utah

January 12, 1934

Appeal from District Court, Fifth District, Beaver County; Le Roy H Cox, Judge.

Mattie Ferguson was convicted of possessing intoxicating liquor, and she appeals.

REVERSED and REMANDED, with directions.

Wm. B Higgins, of Fillmore, for appellant.

Geo. P Parker, Atty. Gen., for the State.

EPHRAIM HANSON, Justice. STRAUP, C. J., ELIAS HANSEN, Justice FOLLAND, J., MOFFAT, J., concurring.

OPINION

EPHRAIM HANSON, Justice.

The defendant was convicted in the district court of Beaver county of knowingly having in her possession intoxicating liquor as charged in the information, and sentenced to serve ninety days in the county jail and to pay a fine of $ 299. From the conviction and sentence she appeals.

During the trial of the case, the court, over the defendant's objection, received in evidence the justice's docket of the justice of the peace of the town of Milford, Beaver county, showing that on January 22, 1929, the defendant had been convicted of the unlawful possession of intoxicating liquor. The defendant excepted to and assigns as error the action of the court in overruling the objection. The ground for the objection was that the information did not allege facts showing such prior conviction of the defendant. The information, so far as deemed desirable for the purpose of this decision, reads as follows:

"That said defendant Mattie Ferguson on the 20th day of July, 1929, at Beaver County, State of Utah, then and there being did then and there unlawfully, wilfully, feloniously and knowingly have in her possession a quantity of intoxicating liquor, the said Mattie Ferguson being then and there a persistent violator of the 'act prohibiting the manufacture and use of intoxicating liquors' and regulating the sale and traffic therein, she having theretofore, to-wit, been convicted of unlawfully and knowingly having in her possession a quantity of intoxicating liquor."

It is quite evident from what appears in the information that it was intended to charge the defendant with being a persistent violator of the prohibition law of this state, but, whatever may have been the intention of the pleader in this respect, it is plain that defendant is charged with nothing more than a misdemeanor. The omission to allege the time, the place where, and the court in which the defendant had been once before convicted of the unlawful possession of intoxicating liquor in violation of the prohibition law of the state, or since 1925 in violation of some city ordinance, renders the information nugatory in so far as it attempts to charge the defendant with such prior conviction.

The essential facts in reference to the prior conviction must also appear in the information by direct allegation and not by way of recital. Cooper v. Commonwealth, 134 Va. 545, 113 S.E. 863; Hart v. State, 89 Fla. 202, 103 So. 633; State v. Savage, 86 W.Va. 655, 104 S.E. 153; Smith v. State, 75 Fla. 468, 78 So. 530.

It is obvious, therefore, that the information does not state facts sufficient to make the alleged possession of intoxicating liquor by the defendant on July 20, 1929, a felony. It is equally plain that, on the facts presented by the information, the only question for the court to hear and determine was the charge that the defendant, on July 20, 1929, at Beaver county, state of Utah, unlawfully and knowingly had in her possession intoxicating liquor. Hence, the defendant's conviction of the unlawful possession of intoxicating liquor in violation of the prohibition law of the state, as shown by the justice's docket, was clearly irrelevant and immaterial. The evidence is clearly excluded by the general rule that, on a prosecution for a specific offense, evidence which shows or tends to show the commission of another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. The objection should have been sustained. 16 C. J. 586, § 1132; Hinckley v. Peay, 22 Utah 21, 60 P. 1012; Paetz v. State, 129 Wis. 174, 107 N.W. 1090, 9 Ann. Cas. 767.

This is practically conceded by the Attorney General who contends, however, that the error was cured by the verdict. We are not impressed with that conclusion. Because the jury found, with the objectionable evidence before it, that the defendant was guilty of no greater offense than that actually charged in the information, it does not follow that its findings would have been the same with the objectionable evidence excluded. Indeed, in view of the facts and the contentions of the parties in respect thereof, we think the admission of the justice's record as to defendant's prior conviction was very prejudicial.

The defendant was the proprietress of a rooming house, consisting of the upper rooms of a two-story building. On the date in question the sheriff and two deputies entered the defendant's rooming house for the purpose of searching it for intoxicating liquor. The sheriff and one of the deputies entered from the back. The other deputy had already preceded them by way of the front entrance. At the head of the stairs they met two girls, daughters of the defendant. After a few words had passed between them the defendant came out of room 15 and said to the sheriff: "Well, Mr. Jenson, you won't find anything this time. Here are the keys. You can go ahead and search." A search through all the rooms was made, and no liquor was found. In room 15 the sheriff opened the window and looked out and saw nothing. The sheriff and one deputy went down the back stairway and when they reached a landing the deputy looked out of a window onto a flat roof which was attached to the walls of the building in which they were standing. It was the roof of a shoemaker's shop. He saw a burlap sack with a rope tied around it. Without saying anything he went down to the ground and pulled the sack to him. It contained a half-gallon glass jug with some whiskey in it, four quart bottles filled with whiskey and several pint flasks filled with the same kind of liquor. It was found directly under the window of room 15. The sheriff and his deputy brought the sack and its contents to the defendant, and she said: "Don't bring that in here. I know who it belongs to, but I am not going to tell. I will go to jail before I will tell."

The sheriff testified that, before entering the house the first time, he had looked along the roof and did not see the sack. The defendant denied that it was her liquor and denied that it had even been in her possession or under her control. It was not found on her premises, nor, from what appears from the record, premises under her control. One of defendant's witnesses testified she had seen a man place the sack on the roof of the shoemaker's shop. In view of the pleadings, the admission of the justice's record may not, in our opinion, be regarded as harmless error.

Other errors are assigned to instructions given to the jury, but, as no exceptions thereto appear of record, they, of course, cannot be considered. United States v. Eldredge, 5 Utah 161, 13 P. 673.

At the opening of the trial the defendant objected to the introduction of any evidence whatever in the case. The sole reason urged in support of the objection was that the information did not state facts sufficient to constitute a public offense. In assigning as error the court's action in overruling her objection, the defendant asserts that neither the information nor the complaint on which the preliminary examination was heard, states facts sufficient to constitute a felony. We have already stated in this opinion that the information charged the defendant with nothing more than a misdemeanor. The offense charged is one that is clearly triable before the justice of the peace who issued the warrant of arrest and who made the order committing the defendant under bond to answer to the charge in the district court.

It is urged that this court in the case of Jardine v. Harris, Dist. Judge, 63 Utah 560, 227 P. 1029, held that the district court has original jurisdiction to hear and determine criminal causes when a misdemeanor only is charged. We think the Jardine Case so broadly claimed does not support such a proposition. What the court said in that case must be considered in connection with the facts referred to in the opinion. There a misdemeanor was charged before a city court whose jurisdiction in such particular is the same as a justice of the peace. On affidavits filed for reasons stated therein a motion was made for a change of venue and that the case be tried before another judge or justice of the peace in the county. The motion was granted. Notwithstanding there were other justices of the peace in the county, the parties stipulated that the case be transferred, not to a justice of the peace, but to the district court of the First judicial district. In accordance with such stipulation, the case was thereupon transferred to the district court, who, without objection and upon stipulation of the parties, heard the case and rendered a judgment.

But let it not be overlooked what this court there, with respect to jurisdiction acquired by the district court, said: "It is unnecessary to determine what might be the consequences in a case of this kind if there were no stipulation between the parties that the case be tried by the District Court." It is thus seen that the result reached was influenced because of the stipulation. Right or wrong, so far as conferring subject-matter jurisdiction, no such stipulation or factor is here present, and hence the case is no authority whatever to the proposition that a justice of the peace on a complaint charging only a misdemeanor may bind the accused over...