State v. Grady

• Decision Date: 22 July 1965
• Docket Number: No. 9552,9552
• Citation: 89 Idaho 204,404 P.2d 347
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James D. GRADY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 347

404 P.2d 347

89 Idaho 204

STATE of Idaho, Plaintiff-Respondent, v. James D. GRADY, Defendant-Appellant.

No. 9552.

Supreme Court of Idaho.

July 22, 1965.

Vernon K. Smith, Boise, for appellant.

Allan G. Shepard, Atty. Gen., Weldon S. Wood, Asst. Atty. Gen., Martin V. Huff, Pros. Atty., Ada County, Boise, for respondent.

McADDEN, Justice.

James D. Grady, appellant herein, after waiving preliminary hearing, was charged by information of the crime of selling liquor without a license, to which charge he entered his plea of guilty. Subsequently he was adjudged guilty of the crime charged and sentenced to serve a term of two years in the state prison. After sentence was imposed he discharged his counsel who had represented him throughout the district court proceedings, and retained present counsel. He then moved the court for an order to withhold execution of the judgment and for the court to reconsider his previous application for probation. He also moved for an order to allow him to withdraw his plea of guilty and in lieu enter a plea of not guilty. These motions were denied by the trial court, and this appeal was perfected from the denial of his motions and from the judgment.

The charging part of the information reads:

'That the said defendant, JAMES D. GRADY, on or about the 3rd day of March, 1964, at 1410 1/2 North 16th Street, Boise, Ada County, Idaho, then, and there being, did then and there knowingly, wilfully and feloniously sell intoxicating liquor while he, the said defendant was without a license, as provided by Title 23, Chapter 9 Idaho Code.'

By appropriate assignments of error, appellant asserts that the information filed is insufficient to charge the commission of a crime. Specifically, he charges that the information fails to recite that the alleged sale was a sale at retail, pointing out that under Chapter 6, Title 23, Idaho Code, the unlawful sale of liquor is only a misdemeanor, although under Chapter 9 of Title 23 (which chapter has reference to 'retail sale of liquor by the drink only',) such a sale is a felony. In addition he asserts that the information is defective as it does not specify that the 'intoxicating liquor' allegedly sold was one of those dispensed by or in the state liquor store, pointing to the definition of 'liquor' in I.C. § 23-902 (f); that the information is defective for failing to specify the kind of 'license' he failed to have; and that it is defective in failing to specify the name of the person to whom the alleged sale was made. He further asserts that the information does not contain a statement of the offense in such ordinary and concise language as to enable the defendant to know the charge against him, and that the information is so indefinite that a judgment of conviction or acquittal thereunder would not be a bar to a subsequent prosecution.

The state contends, however, that these deficiencies were waived by his plea of guilty and that he can not at this time raise such claimed defects in the information. It is the state's position that under the provisions of I.C. § 19-1419, no indictment is insufficient, nor can the trial, judgment or other proceedings thereon, be affected, by reason of any defect or imperfection in matter of form which does not prejudice the substantial right of the defendant upon its merits. The State additionally contends that under I.C. § 19-2819 and § 19-3702, this court, for a reversal of judgments in criminal actions, may not rely upon technical defects which do not prejudice a defendant in respect to a substantial right.

I.C. § 19-1409 requires that an information or indictment contain the title of the action, the court, and the names of the parties and 'A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.' (Emphasis added). I.C. § 19-1411 requires that the information or indictment must be direct and certain as to the party charged, the offense charged and 'The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.' (Emphasis added). I.C. § 19-1418, provides that an indictment or information is sufficient if it can be understood therefrom, among other items set out, the following:

'6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

'7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case.' (Emphasis added).

Correlative with these statutory requirements for an indictment and with the tests of its sufficiency, there is yet another test as to its sufficiency. If the information fails to describe the offense with such particularity so as to serve as a shield in the event of a second prosecution for the same offense, such information is insufficient. State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. O'Neil, 24 Idaho 582, 135 P. 60.

In State v. Lottridge, supra, this court stated:

'This court in the case of State v. O'Neil, 24 Idaho, 582, 135 Pac. 60, discussing the sufficiency of the indictment and quoting from the case of Cocharan v. United States, 157 U.S. 286, 15 Sup.Ct. 628, 39 L.Ed. 704, said: 'But the true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' The court further said in that opinion: 'An indictment is sufficient if the words employed make the charge clear to the common understanding.'

4 Anderson, Wharton's Criminal Procedure § 1762 (1957) states:

'The constitutional right of the accused to be informed of the nature and cause of the accusation against him requires that every material fact and essential element of the offense be charged with precision and certainty in the indictment or information. He has a substantive right to be informed by the indictment or information in simple, understandable language of the crime he is charged with and the acts constituting the crime, in sufficient detail to enable him to prepare his defense and to be protected in the event of double jeopardy, and to define the issues so that the court will be able to determine what evidence is admissible, and to pronounce judgment.'

Chapter 9 of Title 23, Idaho Code governs the retail sale of liquor by the drink. Failure of the information to allege that the purported sale was made at retail does not make the information uncertain, for it refers to the chapter which deals exclusively with such a sale at retail. The same can be said as to the failure of the information to specify the type of license the appellant allegedly failed to have. The information accuses appellant of commission of a felony for failure to have a license, and hence could have reference only to the license issued by the Commissioner of Law Enforcement of the State of Idaho. The definition of 'license' contained in the chapter referred to in the information has reference to the license issued by the State Commissioner of Law Enforcement. I.C. § 23-902(c). The use of the word 'feloniously' in the information and the reference to Chapter 9, Title 23, excludes the possibility of the charge having reference to a misdemeanor the penalty for which is fixed by I.C. § 23-935, or as defined by Chapter 6, Title 23, Idaho Code. The failure of the information to specify the 'intoxicating liquor' allegedly sold was one dispensed by or in the state liquor store cannot be considered a fatal defect, because the gravamen of the offense as defined by I.C. § 23-938, is the sale of any liquor without a license, regardless of its type or source, as distinguished from a felony charge against a licensee for sale of liquor except that purchased from the Idaho state liquor dispensary, as prescribed by I.C. § 23-914.

The courts are divided on the question of whether an information charging an offense of sale of liquor without a license must set out the name of the person to whom the sale is made. 27 Am.Jur. 644, Indictments and Information § 82, note 6; 30 Am.Jur. 717, Intoxicating Liquors § 316.

In 2, Woolen and Thornton, Intoxicating Liquors, §§ 877-878, the problem of whether it is essential that the name of the purchaser be set forth in the information or complaint is thoroughly discussed. Therein in § 877 it is stated:

'Hopeless confusion exists in the cases on the question of the necessity of naming the purchaser of the liquor. There is a long line of cases that it is necessary. The reason for this requirement has been stated thus: 'The statute makes each act of selling a crime. It is proper that the act be so described as to identify it from other acts of a similar kind as near as practicable. And this can be best done by giving the name of the vendee, if known, or if unknown, so alleged: [State v. Pischel, 16 Neb. 608, 21 N.W. 468] * * * Similar language was used by another court: 'An offense charged should be described with certain sufficiency to inform the defendant of the particular thing with which he is charged. Otherwise he cannot know how to prepare his defense. Such certainty is also requisite that he may conveniently avail himself of an acquittal or conviction, in bar of a subsequent prosecution for the same matter.''' [State v. Schmail, 25 Minn. 368. See: Nelson v. United States, CC 9, 30 F. 112].

In § 878, the authors discuss the cases from jurisdictions which hold that the...