State v. Gardner

• Decision Date: 25 September 1926
• Docket Number: No. 5945.,5945.
• Parties: STATE v. GARDNER.
• Court: Montana Supreme Court

77 Mont. 8

STATE

v.GARDNER.

No. 5945.

Supreme Court of Montana.

July 13, 1926.

Rehearing Denied Sept. 25, 1926.

Appeal from District Court, Custer County; S. D. McKinnon, Judge.

Frank Gardner was convicted of unlawful possession of property designed for manufacture of intoxicating liquor, and he appeals. Affirmed.

C. A. Spaulding, of Helena, and George W. Farr and Frank Hunter, both of Miles City, for appellant.

L. A. Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and Rudolph Nelstead, of Miles City, for the State.

MATTHEWS, J.

On January 22, 1926, the county attorney of Custer county filed in the district court of said county an information containing two counts, the first of which charged the defendant, Frank Gardner, with the unlawful possession of intoxicating liquor, while the second count charged him with the unlawful possession of “property designed for the manufacture of intoxicating liquor.” In the second count it is alleged that the defendant did “willfully, wrongfully, and unlawfully possess the following: Two large vats, one burner, two 30-gallon kegs full of moonshine, 500 gallons of mash, two pressure tanks, three small domes, one hydrometer, one large boiler, and other articles * * * designed for the manufacture of liquor, intended by him, the said Frank Gardner, for use in violating the laws of the state of Montana,” etc. Timely motion for the suppression of the evidence, upon the ground that the same was obtained by means of a void search warrant, was made, heard, and overruled.

On April 8, 1926, the defendant was duly brought to trial under the information and his plea of “not guilty,” and, on the trial, the articles secured and information obtained by the search under the alleged void warrant were permitted to go to the jury over the objection of the defendant. At the close of the state's case, and again at the close of the trial, defendant moved for a directed verdict, which motion was overruled. The jury found the defendant “not guilty” on count 1 and “guilty” on count 2, and judgment was duly entered on the verdict. Defendant then moved for a new trial, which motion was denied. This appeal is from the judgment and from the order denying him a new trial.

Defendant makes 15 assignments of error, which, however, collectively raise but three questions: (1) Does count 2 above state facts sufficient to charge a public offense? (2) Was the evidence sufficient to warrant a conviction under that count? (3) Was the evidence admissible?

1. Counsel for defendant contend that the provisions of section 11070, Revised Codes of 1921, apply only to proceedings in rem against contraband articles, citing State ex rel. King v. District Court, 70 Mont. 191, 224 P. 862, and that the only provision for criminal prosecution under the Prohibition Act is to be found in section 11049, Revised Codes of 1921. We find nothing in the King Case to justify counsel's contention. All that is there said regarding section 11070 is that, since its enactment, no property rights exist in contraband articles, and therefore the Supreme Court will not order their return to a claimant on his application to suppress their use against him in a criminal trial, although it is shown that they were illegally taken from his possession. Section 11070 declares that:

“It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this act or which has been so used, and no property right shall exist in any such liquor or property.”

This section is now a part of chapter 29, Revised Codes of 1921, which, with the succeeding chapter, constitutes our “prohibition” law; its language is identical with that of the corresponding section of the Volstead Act. 41 Stat. at Large, 315, c. 85, tit. 2, § 25 (U. S. Comp. St. § 10138 1/2m).

Section 11049, also found in chapter 29, declares certain acts in violation of the Prohibition Law to be crimes, but it does not contain an enumeration of all acts or omissions which are declared to be unlawful in that chapter by any means. In addition to section 11070, we find certain acts declared to be “unlawful” in sections 11060, 11061, 11062, 11063, 11102, and 11118, while certain other acts are “prohibited” by the provisions of sections 11052, 11053, 11064, and, perhaps, other sections found in the chapter.

Section 11075, as amended by chapter 116, § 2, Laws of 1923, provides special penalties for certain specific acts, and then declares that:

“Any person who violates any of the provisions of such [prohibition] laws, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than five hundred * * * dollars. * * *”

This brings the act under consideration within our Code definition of “a crime or public offense,” which is:

“An act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: * * * 3. Fine. * * *” Section 10721.

While this question has not heretofore been directly presented to this court, we have before this proceeded upon the assumption that a charge based upon section 11070 states a public offense (State ex rel. King v. District Court, above; State v. Jenkins, 66 Mont. 359, 213 P. 590;State ex rel. Merrell v. District Court, 72 Mont. 77, 231 P. 1107), and properly so. Neither the fact that public offenses of a like nature are defined in a separate section, nor the fact that the possessor has no property rights in the contraband articles, can rob the unlawful possession thereof of its criminal character.

While, under the Prohibition Act, proceedings in rem are authorized, it is clear that such proceedings were not intended to supersede criminal prosecution for a violation of any prohibitory statute contained in the act, for the concluding paragraph of section 11105 reads:

“Action under this section and the forfeiture, destruction, or sale of any property thereunder, shall not be a bar to any prosecution under any other provision or provisions of the laws of this state relating to intoxicating liquors.” State ex rel. Prato v. District Court, 55 Mont. 560, 179 P. 497.

Counsel, however, contend that, even if this be so, the information is defective, in that it does not charge a specific intent. The statute does not make any specific intent an ingredient of the crime defined, to wit, the “possession” of the prohibited articles, other that that they are “designed” for the manufacture of liquor intended for use in violating the law. The crime defined in section 11070 is purely statutory; it did not exist at common law; it was enacted in the exercise of the police power of the state (section 11100); and–

“while it is true that our statute declares that ‘in every crime there must be a union or joint operation of act and intent,’ the statute is but declaratory of the common-law rule * * * and an exception to this rule, in so-called ‘statutory crimes' enacted under the police power of the state, is recognized by the great weight of authority.” State v. Smith, 57 Mont. 563, 190 P. 107.

Section 11070, taken in connection with section 11075, fixing the penalty, defines a complete crime or public offense; count 2 charges that offense in the language of the statute, and is therefore sufficient. Section 11078; State v. Jenkins, above.

2. In support of the contention that the evidence is insufficient, counsel assert that no specific intent was shown, citing only Nosowitz v. United States (C. C. A.) 282 F. 575. There the defendant was prosecuted under section 18, title 2, of the Volstead Act (U. S. Comp. St. § 10138 1/2i), which makes it unlawful to manufacture, sell, or possess for sale articles “designed or intended for use in the unlawful manufacture of intoxicating liquor,” and corresponds to our section 11063. The evidence disclosed that the defendant had manufactured and sold certain “cans” labeled “for storing gas and oils,” without any showing that they were intended by the manufacturer for use as stills or parts of stills. The court said:

“This statute requires that it be shown that the still is ‘intended for use in the unlawful manufacture of intoxicating liquors.’ There is no presumption created by the statute which presumes the possession of a vessel that might be used as a still or a part of a still to be unlawful. The act of manufacturing must have coupled with it a specific intent to do the wrong denounced in the statute before the defendants may be said to be guilty. Such intent must be proved as an independent fact, or at least circumstances established from which it would be proper to permit a jury to find such intent.”

The phrase quoted by the learned judge, “intended for use in the unlawful manufacture of intoxicating liquors,” does not appear in the section under which this prosecution was had; but, even though we consider the word “designed” as meaning intended by the possessor, and that such intent, as alleged in the information, must be proved (State ex rel. Prato v. District Court, above), the proof may be either by direct or circumstantial evidence.

The articles introduced in evidence were highly significant of their designed or intended use; among them we find 500 gallons of “mash.” The term “property designed for the manufacture of liquor intended for use” in the violation of the Prohibition Act, is broad enough to include “mash.” United States v. Puhac (D. C.) 268 F. 392. Of this mash the witness Welliver said:

“I discovered some mash in a high state of fermentation; * * * by high state of fermentation I mean it is nearly ready to run, be worked over, and made into whisky.”

The mash was clearly “designed” for the manufacture of liquor and for no other purpose, and the “whisky” to be made therefrom could be used for no other purpose than the violation of the Prohibition Act. The fact that some evidence was introduced to contradict the witness could raise but a conflict in...