State v. Jackson

• Decision Date: 24 June 1935
• Citation: 261 N.W. 732,219 Wis. 13
• Parties: STATE v. JACKSON.
• Court: Wisconsin Supreme Court

219 Wis. 13

261 N.W. 732

STATE

v.JACKSON.

Supreme Court of Wisconsin.

June 24, 1935.

Appeal from a judgment of the Circuit Court for Vernon County; R. S. Cowie, Circuit Judge.

Reversed.

Tilmer Jackson, the appellant, hereafter called the defendant, was prosecuted upon an information containing five counts. In count 1 it was charged that the defendant “did on the 25th day of May, 1934, at the city of Viroqua, in said county, sell and offer for sale and expose for sale, exchange and barter, intoxicating liquors not for shipment in interstate commerce and not for shipment by a manufacturer to a rectifier, without placing thereon the stamps in the amount and kind and character required by chapter 139, contrary to the provisions of section 139.03 (9), of the Wisconsin Statutes.”

In count 2 it was charged that the defendant “did on the 25th day of May, 1934, at the city of Viroqua, in said county, unlawfully without a license or permit, vend, sell, deal and traffic in intoxicating liquors, in violation of Section 176.04, Wisconsin Statutes.”

In counts 3, 4, and 5, it was alleged that the defendant had theretofore been thrice convicted for violating the federal and state prohibition laws and duly sentenced, which sentences were of record and unreversed. The former convictions of the defendant were alleged in the information solely for the purpose of permitting the court to sentence the defendant pursuant to the provisions of section 359.14 in case he should be found guilty of either offense charged in count 1 and count 2. Before pleading to counts 1 and 2, the defendant admitted the former convictions as alleged, and also demurred to the information on the grounds that it charged no crime known to the law and was bad for duplicity. Defendant's demurrer was overruled. Trial was had to the court and a jury on counts 1 and 2. The jury returned a verdict in which it found the defendant guilty of the offenses charged. Upon the return of the verdict the defendant moved in arrest of judgment and for a new trial. Those motions were denied. The court thereupon adjudged the defendant guilty of the crimes charged in counts 1 and 2 and sentenced him as follows: On count 1, that he be imprisoned in the Wisconsin State Prison at Waupun for an indeterminate term of not less than one year nor more than two years; on count 2, that he be imprisoned in the county jail of Vernon county for six months; that he pay a fine of $500 and costs; and, that in default of the payment of such fine and costs, he be further confined in the county jail of Vernon county until such fine and costs are paid, not to exceed six months; all sentences to run consecutively. From such judgment and sentences the defendant appealed. So many of the facts as are necessary to an understanding of the questions raised and determined will be stated in the opinion.Levi H. Bancroft, of Richland Center, and J. Henry Bennett, of Viroqua, for appellant.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Martin Gulbrandsen, Dist. Atty., of Viroqua, for the State.

NELSON, Justice.

The contentions of the defendant which we deem sufficiently important to merit consideration may be summarized as follows: (1) The court erred in overruling his demurrer to the information; (2) the court erred in not requiring the state to elect upon which count it would try the defendant; (3) the court erred in admitting evidence of other sales of liquor by the defendant to Dick Bray, the state's principal witness at times prior to May 25, 1934; (4) the court erred in stating upon the trial that the venue had been sufficiently proved and that no further testimony as to venue was necessary, thereby invading the province of the jury; (5) the court erred in not promptly condemning a statement made by the district attorney during his argument to the jury in which he commented on the failure of the defendant to take the stand, in not then and there specifically instructing the jury as to the defendant's rights in that regard, and in not admonishing the jury to disregard such improper remark; (6) the court erred to his prejudice in instructing the jury; and (7) that the court erred in imposing sentence upon him.

[1] 1. Defendant's first contention is that his demurrer should have been sustained because count 1 states no offense known to the law. Count 1 charged that on May 25, 1934, the defendant did sell and offer for sale and expose for sale, exchange, and barter, etc., contrary to the provisions of section 139.03 (9). A reading of said subsection (9) clearly reveals that count 1 does not charge an offense under that subsection. Subsection (9) relates to the counterfeiting of stamps, not to the sale, exchange, or barter of intoxicating liquors without them. Count 1 of the information substantially follows the language of section 139.03 (8), as amended by chapter 3, Sp. Sess. 1933–1934, which enacted section 139.27. In our opinion, such error could not have misled the defendant or prejudiced his rights. Count 1 fully and accurately advised the defendant as to the nature of the offense charged. Jicha v. State, 189 Wis. 620, 208 N. W. 479.

[2] The defendant next contends that the information is bad for duplicity because it charges two offenses in a single act or transaction. The defendant, in count 1, was charged with selling intoxicating liquors without having stamps on the container. In count 2 he was charged with selling intoxicating liquors without a license or permit. The facts adduced upon the trial show that the two offenses are based upon one sale of intoxicating liquor to the witness Bray. It does not, however, follow that the defendant may not be charged with and convicted of both offenses. In State v. Brooks, 215 Wis. 134, 254 N. W. 374, it was held that Brooks was properly convicted of adultery, although he had theretofore been convicted of the crime of lewd and lascivious conduct; both charges being grounded upon a single transaction. It was held that adultery and lewd and lascivious conduct were properly considered separate offenses. The law of Morey v. Commonwealth, 108 Mass. 433, was followed. In that case it was said: “A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

The doctrine of State v. Brooks, supra, is clearly applicable to the case at bar. Count 1 required proof of a sale of intoxicating liquors without its container being stamped. Count 2 required proof of a sale of intoxicating liquors without a license or permit. In our opinion the defendant was properly prosecuted under counts 1 and 2 for two separate and distinct offenses. There was no error, therefore, in overruling the defendant's demurrer to the information.

[3] 2. The defendant next contends that the court erred in not requiring the state to elect upon which count of the information it would proceed. That contention is without merit, since the state was permitted to charge two separate crimes in the same information.

[4][5][6][7][8] 3. The defendant next contends that the court erred in admitting evidence of sales of liquor to Dick Bray, the state's principal witness, at times prior to May 25, 1934. Although the defendant strenuously objected to the introduction of such testimony, the court admitted it on the theory that it was competent to show inent. Intent, however, is not an element of selling liquor without stamps or selling liquor without a license. The admission of such testimony was clearly error and prejudicial, if received for the purpose of proving that the defendant was guilty of the specific charge or charges made against him. Boldt v. State, 72 Wis. 7, 16, 38 N. W. 177;Fossdahl v. State, 89 Wis. 482, 485, 62 N. W. 185. The rulings in the Boldt and Fossdahl Cases have been repeatedly recognized as the law of this state. Dietz v. State, 149 Wis. 462, 468, 136 N. W. 166, Ann. Cas. 1913C, 432;Hess v. State, 174 Wis. 96, 99, 181 N. W. 725;Faull v. State, 178 Wis. 66, 69, 189 N. W. 274.

The court instructed the jury as follows: “Now, there has been some testimony introduced in this case and evidence was admitted, tending to show previous sales of liquor by the defendant to the complaining witness, Bray. You are instructed that you are not to consider such evidence as proof of the particular offense charged in this information, which is definitely set on the 25th day of May, 1934. You may consider such evidence only as bearing upon the relationship between the parties and as bearing upon the probability or improbability of the fact as to the alleged sale on the 25th of May, 1934, (Italics ours) and with regard to such testimony as bearing on the question of identity of the party alleged to have made the sale on the 25th of May, if you believe there was any such sale in fact made.”

In these instructions the court...