State v. Hall

Citation190 P. 251,33 Idaho 135
PartiesSTATE, Respondent, v. T. C. HALL, Appellant
Decision Date29 May 1920
CourtUnited States State Supreme Court of Idaho

CRIMINAL LAW-INFORMATION-DUPLICITY-DEMURRER-MOTION IN ARREST OF JUDGMENT.

1. Where an information charges more than one offense and a demurrer is interposed upon that ground, and the jury finds the defendant guilty of all the offenses charged, a motion in arrest of judgment should be granted.

2. Where a motion in arrest of judgment has been interposed by a defendant who has been found guilty of several offenses charged in a single information, to which information a demurrer has been filed upon the ground of duplicity, it is error for the court to grant the motion as to all but one of the offenses of which defendant has been found guilty, and to permit the prosecuting attorney to select the offense upon which the defendant shall be sentenced.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Defendant was convicted of having in his possession intoxicating liquor, and appeals. Reversed and remanded.

Reversed and remanded.

Chas F. Reddoch and Frawley & Koelsch, for Appellant.

When a demurrer is allowed to an information, the court is the only power or authority by which the prosecution can be continued and its right is exercised by adjudicating at the time of allowing the demurrer that in its opinion the objection may be avoided in a new indictment or information, and without this being done the prosecution is at an end. (In re Pierce, 8 Idaho 183, 67 P. 316; Territory v Munroe, 10 Ariz. 53, 85 P. 651; Ex parte Hayter, 16 Cal.App. 211, 116 P. 370; Ex parte Hughes, 160 Cal. 388, 117 P. 437; Ex parte Williams, 116 Cal. 512, 48 P. 499; People v. Ammerman, 118 Cal. 23, 50 P. 15; State v. Comfort, 22 Minn. 271; State v. Holton, 88 Minn. 171, 92 N.W. 541; People v. Zerillo, 146 A.D. 812, 131 N.Y.S. 500; People v. Davis, 163 A.D. 662, 148 N.Y.S. 988; People v. Rosenthal, 197 N.Y. 394, 90 N.E. 991, 46 L. R. A., N. S., 31; Ex parte Dodson, 3 Okla. Cr. 514, 107 P. 450; State v. Crook, 16 Utah 212, 51 P. 1091.)

In the information a single act or set of acts has been segregated into four separate and distinct offenses, which is forbidden by sec. 7230 Rev. Codes. (State v. Gutke, 25 Idaho 737, 139 P. 346.) An indictment or information must charge but one offense. (State v. Gruber, 19 Idaho 692, 115 P. 1.)

The court erred in refusing to require the state to elect. (12 Standard Procedure, 679, 680, 681, 686; State v. Gomes, 9 Kan. App. 63, 57 P. 262; State v. Finch, 71 Kan. 793, 81 P. 494; 14 R. C. L., sec. 42, p. 199; State v. Nelson, 14 Rich. L. (S. C.) 169, 94 Am. Dec. 130.)

"The objection that an indictment is bad for duplicity should be by demurrer, by motion to quash, or by motion that the prosecution be required to elect between the offenses, and a failure to do so waives the objection and it cannot be raised by motion in arrest of judgment." (12 Cyc. 762; State v. McBride, 72 Wash. 390, 130 P. 486; People v. Clement, 4 Cal. Unrep. 493, 35 P. 1022.)

T. A. Walters, Former Atty. General, J. P. Pope, Assistant, R. L. Black, Atty. General, James L. Boone, Assistant, and E. S. Delana, Prosecuting Attorney, for Respondent, rely upon brief for respondent in State v. Bilboa.

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

The appellant was convicted of the crime of having in his possession intoxicating liquor. The information upon which he was tried and convicted contains three counts, as follows: Transporting intoxicating liquor; possession of intoxicating liquor for beverage purposes, and possession of intoxicating liquor.

To this information appellant filed a demurrer, among several grounds setting up the following: That more than one offense is charged in said information; that said information segregates one act or omission into three separate and distinct offenses as set forth in the three causes of action thereof. This demurrer was overruled.

At the opening of the trial, the appellant moved to require the state to elect upon which charge it would go to trial, which motion was overruled. At the close of the state's testimony, the motion to require the state to elect was renewed, and denied by the court.

The court instructed the jury in part as follows: "Should the jury believe from the evidence beyond a reasonable doubt that the defendant is guilty of any one or more of the offenses charged in the information, he may be convicted of one or more of such offenses; and the failure of the jury to find guilty under any count shall be deemed an...

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7 cases
  • State v. Peters
    • United States
    • Idaho Supreme Court
    • 15 February 1927
    ...The information charged more than one offense, contrary to C. S., sec. 8829. (State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Hall, 33 Idaho 135, 190 P. 251; State v. Cooper, 35 Idaho 73, 204 P. The court erred in denying motion of defendants seeking to compel state to elect. (State v. ......
  • State v. Patterson
    • United States
    • Idaho Supreme Court
    • 9 March 1939
    ... ... sec. 19-1204, provides: "The indictment must charge but ... one offense, ... " and sec. 19-1603 makes the ... charging of more than one offense ground for demurrer. ( ... State v. Bilboa, 33 Idaho 128, 190 P. 248; State ... v. Hall, 33 Idaho 135, 190 P. 251; State v ... Cooper, 35 Idaho 73, 204 P. 204; State v. Fong ... Wee, 47 Idaho 416, 275 P. 1112; State v ... McDermott, 52 Idaho 602, 17 P.2d 343.) ... Although ... the language of the charging part of the information is ... sufficient to describe both ... ...
  • State v. Knutson
    • United States
    • Idaho Supreme Court
    • 4 February 1929
    ...distinct crimes on one information and in one count. (C. S., secs. 8829, 9019; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Hall, 33 Idaho 135, 190 P. 251; State v. Cooper, 35 Idaho 73, 204 P. The court should have sustained the defendant's motion to require the state to elect upon w......
  • State v. Brown
    • United States
    • Idaho Supreme Court
    • 4 November 1922
    ... ... Judgment affirmed ... Judgment affirmed. Petition for rehearing denied ... Miller ... & Ricks, for Appellants ... The ... indictment must charge but one offense. (C. S., sec. 8829; ... State v. Bilboa, 33 Idaho 128, 190 P. 248; State ... v. Hall, 33 Idaho 135, 190 P. 251; 12 Standard Ency ... Proc. 499; Crowell v. State, 15 Ariz. 66, 136 P ... 279; State v. St. Louis & S. F. R. Co., 83 Ark. 249, ... 103 S.W. 623; State v. Hull, 83 Iowa 112, 48 N.W ... 917; State v. Wester, 67 Kan. 810, 74 P. 239; ... Commonwealth v. Fuller, 163 ... ...
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