State v. Grasswick
| Decision Date | 01 November 1926 |
| Docket Number | 5991. |
| Citation | 250 P. 613,77 Mont. 326 |
| Parties | STATE v. GRASSWICK. |
| Court | Montana Supreme Court |
Appeal from District Court, Pondera County; John J. Greene, Judge.
Emil Grasswick, alias Emil Erickson, was convicted of selling and possessing intoxicating liquor, and he appeals. Reversed and remanded, with direction.
Arnot & Doyle, of Conrad, for appellant.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.
Appeal from a judgment of conviction and order denying defendant a new trial.
On November 14, 1925, the county attorney of Pondera county, by information duly filed, charged that one "Emil Grasswick, alias Emil Erickson" was guilty of violating the prohibition laws of this state. The information contained four counts charging (1) selling, (2) transporting, (3) possessing intoxicating liquor, and (4) maintaining a nuisance. The defendant was not brought into court for arraignment, but appeared by counsel, waived the reading of the information, stated that the true name of the defendant was Emil Grasswick, accepted a copy of the information waived the statutory time in which to plead, and "entered a plea of not guilty to the offense charged."
On April 6, 1926, the case was called for trial and again the defendant did not appear personally, but did appear by counsel, who moved that the case be continued for the term. No ruling on the motion appears in the record, but the court proceeded with the trial in the absence of the defendant. During the trial counts 2 and 4 were dismissed, and thereafter the defendant was convicted on counts 1 and 3 and judgment of conviction thereon entered. Thereafter defendant moved for a new trial on the grounds of insufficiency of the evidence to justify the judgment and newly discovered evidence, which motion was denied.
The defendant contends that the judgment and order cannot be sustained for the following reasons: (1) That the defendant never pleaded to the charge contained in count 1 or in count 3; (2) that count three does not charge a public offense, in that no venue is laid and the language of the count is ambiguous and unintelligible; (3) that there is no substantial evidence to support the judgment, in that no competent proof was submitted identifying the defendant as the person who committed the crime charged and proved; and (4) that the court erred in denying defendant's motion for a new trial.
1. The entry made by the clerk on arraignment of the defendant contains the word "offense" only, from which counsel argue that the defendant pleaded to but one offense not ascertained, and not to the offenses charged in the information.
It is of course, necessary, before a defendant can be placed on trial, that he be arraigned; that he plead to the offense or offenses charged in the information; and that his plea be entered in the minutes of the court. Sections 11875, 11888, 11908, Rev. Codes 1921. But the plea is "to the information" (section 11907, Id.), and the form of the plea of not guilty is prescribed in section 11908, to wit: "The defendant pleads that he is not guilty of the offense charged." The plea made and entered followed the mandate of the statute.
It is true that the form was prescribed at a time when the charging of more than one offense in an information was not known in this state, as the Code then declared that an information must charge but one offense (section 11847, Rev. Codes 1921): but counsel for the defendant pleaded to the information as a whole without designating any particular offense and clearly intended that such plea should go to any offense charged in the information, and, whatever may be the proper method of pleading under section 11908, Revised Codes of 1921, permitting the charging of any number of offenses against the prohibition act in separate counts under single information, "if there was any informality in that respect, it was entirely without prejudice." People v. Tomsky, 20 Cal.App. 672, 130 P. 184; People v. Airola, 46 Cal.App. 79, 188 P. 817. "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right." Section 11874, Rev. Codes 1921.
Since a trial was had on issue joined by plea which counsel for defendant considered sufficient, the plea was sufficient to support the judgment herein.
2. As the case must be sent back for a new trial, it is not now necessary to consider the sufficiency of count 3 of the information, or whether defendant has waived the question; suffice it to say that the count is defective, and, before a new trial is had, should be amended to comply substantially with the requirements of section 11844 of the Revised Codes of 1921.
3. It is asserted that the evidence is insufficient to...
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