State v. Galbraith

• Decision Date: 11 February 1929
• Docket Number: 21373.
• Citation: 150 Wash. 664,274 P. 797
• Parties: STATE v. GALBRAITH.
• Court: Washington Supreme Court

274 P. 797

150 Wash. 664

STATE v. GALBRAITH.

No. 21373.

Supreme Court of Washington

February 11, 1929

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

W. L Galbraith was convicted of violation of the liquor laws, and he appeals. Affirmed.

Joseph A. Albi, of Spokane, for appellant.

Chas W. Greenough and Carl P. Lang, both of Spokane, for the State.

PARKER J.

The defendant, Galbraith, was charged as follows:

'Count I.

'Comes now the prosecuting attorney in and for Spokane County, Washington, and charges the defendant, W. L. Galbraith, with the crime of being a Jointist, committed as follows:

'That the said defendant, W. L. Galbraith, in the County of Spokane, State of Washington, on or about the 23rd day of April, 1927, then and there being, did then and there willfully, unlawfully and feloniously conduct and maintain a place at West Branch for the unlawful sale of intoxicating liquor.

'Count II.

'And the prosecuting attorney, as aforesaid, further charges the said defendant, W. L. Galbraith, with the crime of Liquor in Possession with Intent to Sell, committed as follows:

'That the said defendant, W. L. Galbraith, in the County of Spokane, State of Washington, on or about the 23rd day of April, 1927, then and there being, did then and there willfully and unlawfully have in his possession intoxicating liquor, to-wit; Moonshine Whiskey, with intent then and there to sell, barter and exchange the same.'

Trial in the superior court for Spokane county sitting with a jury resulted in a verdict finding Galbraith guilty of being a jointist, as charged in count 1, and the rendering of a judgment thereon sentencing him to the penitentiary; and also a verdict finding him guilty of unlawful possession of intoxicating liquor with the intent to sell, as charged in count 2, and the rendering of a judgment thereon sentencing him to the county jail and to pay a fine, and an order suspending that sentence pending good behavior. From these judgments Galbraith has appealed to this court.

It is contended in behalf of appellant that the trial court erred in allowing the prosecuting attorney to proceed to seek and obtain conviction upon both counts of the information as for two separate offenses of the same class charged therein under section 2059, Rem. Comp. Stat., as amended by Chapter 109, Laws of 1925. The argument proceeds upon the assumption that the misdemeanor charge of possession of intoxicating liquor, charged in count 2, is in law included in the felony charge of being a jointist, charged in count 1, and that therefore there cannot lawfully be separate charges and convictions as for two separate offenses. It may be conceded that, if this assumption were correct, the argument would have substantial basis, but we have several times held that the misdemeanor of possession of intoxicating liquor is not, in law, included in the felony of maintaining a place for the unlawful sale of intoxicating liquor. State v. Woods, 116 Wash. 140, 198 P. 737; State v. Bossio, 136 Wash. 232, 239 P. 553; State v. Kingsbury, 147 Wash. 426, 266 P. 174. So, these being separate offenses, but of the same class, they were properly charged in separate counts of one information, and appellant was subject to conviction, if proven guilty, separately upon each count. State v. Hilstad, 148 Wash. 468, 269 P. 844; State v. Heppell (Wash.) 271 P. 335.

It is contended that the trial court erred to the prejudice of appellant in refusing to sustain his counsel's challenge to a certain juror for cause. The only cause shown was that the juror was at the time of the trial a member of our state Senate, and to that extent only holding office or employment under our state government. The only statutory provision we have which can in any manner be regarded as pointing to the disqualification of this juror is the following language of section 330, Rem. Comp. Stat.: 'A challenge for implied bias may be taken for any or all of the following causes, and not otherwise. * * * 2. Standing in the relation of * * * master and servant * * * to the adverse party * * * or in the employment for wages of the adverse party. * * *'

In State v. Lewis, 32 Wash. 75, 71 P. 778, this court held that a justice of the peace was not subject to challenge as a juror upon the sole ground of his being such officer; the case in which he sat as a juror being a criminal prosecution by the state for larceny. No decision has been brought to our attention holding a member of the judiciary or legislative branch of the state or national government subject to challenge as a juror as for implied bias upon the sole ground of that relationship, in a criminal prosecution. 16 R. C. L. 274. There are decisions holding administrative officers or employees subject to challenge as jurors in cases where the state or national government is a party, solely because of their being such officers or employees, even in the absence of statute making that a cause for challenge, as in Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann. Cas. 392, a case wherein a post office employee was held disqualified as for implied bias in a federal criminal prosecution relating to an alleged illegal contract for the sale of a device to the Post Office Department. The reasons for such challenge, we think, do not apply to the qualification of our judicial or legislative officers as jurors. Such officers are not prosecutors or under any control of the administrative branch of our county or state government.

It is contended that error occurred to the prejudice of appellant by...