State v. Johnson

• Decision Date: 07 July 1924
• Citation: 39 Idaho 440,227 P. 1052
• Parties: STATE, Respondent, v. EDGAR JOHNSON and FRED RODRIGUES, Appellants
• Court: Idaho Supreme Court

227 P. 1052

39 Idaho 440

STATE, Respondent, v. EDGAR JOHNSON and FRED RODRIGUES, Appellants

Supreme Court of Idaho

July 7, 1924

CRIMINAL LAW-SPECIFICATIONS OF ERROR-POSSESSION OF INTOXICATING LIQUOR.

1. A general specification of error that the evidence is insufficient to sustain the verdict, without stating the particulars in which it is alleged to be insufficient, does not, under C. S., sec. 9068, require this court to consider such specification.

2. A general assignment of error, without any specification of particulars wherein it is claimed that the verdict or judgment is against the evidence or contrary to law, is too indefinite to be considered, and an appellate court will not consider such assignment or search the record in order to ascertain whether such a general specification is well founded.

3. Under C. S., sec. 8087, which requires that in every crime or public offense there must exist an intent or joint operation of act and intent or criminal negligence, a person cannot be convicted for unlawful possession of intoxicating liquor unless his possession, whether it be actual or constructive is with his knowledge or consent.

4. Under C. S., sec. 2606, making the possession of intoxicating liquor unlawful without regard to the intent of such possession, it is not necessary that the liquor be taken from the person of the defendant or found in the dwelling-house which he occupies. It is sufficient if it be found upon the premises over which he exercises such dominion and control as ordinarily obtains with regard to one's dwelling-house and the premises adjacent thereto, in the absence of any attempted explanation.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.

Judgment of conviction for unlawful possession of intoxicating liquor. Affirmed.

Affirmed.

Harris Stinson & Harris, for Appellants.

The possession of intoxicating liquor, in order to be a crime must be had knowingly, or at least by the connivance or with the consent of the possessor. (Ex parte Baugh, 30 Idaho 387, 164 P. 529.)

Possession of intoxicating liquor to be a crime must be had knowingly, intentionally and unlawfully. (C. S., sec. 8087; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

Where the insufficiency of the evidence to support the verdict and judgment is assigned as error, it is necessary to specify the insufficiency. (State v. Snook, 34 Idaho 403, 201 P. 494; State v. Sayko, 37 Idaho 430, 216 P. 1036.)

Possession of intoxicating liquor may be either actual or constructive. (State v. Sheehan, 33 Idaho 103, 196 P. 532.)

The question of unlawful possession is a question of fact for the jury. The evidence is sufficient to sustain the verdict. (Osborne v. State, 27 Ga.App. 271, 108 S.E. 81; Hogg v. State, 18 Ala. App. 179, 89 So. 859; Moore v. Commonwealth, 132 Va. 738, 111 S.E. 127.)

Where there is sufficient competent evidence upon which to base a verdict, the judgment will be affirmed. (State v. Sterrett, 35 Idaho 580, 207 P. 1071.)

WILLIAM A. LEE, J. McCarthy, C. J., and Wm. E. Lee, J., concur.

OPINION

WILLIAM A. LEE, J.

--Appellants, Edgar Johnson and Fred Rodrigues, were jointly charged with the unlawful possession of intoxicating liquor and upon trial were convicted of the charge. From the judgment of conviction this appeal is taken. They make the following assignments of error: (1) The evidence is insufficient to justify the verdict; (2) The verdict is against the evidence; (3) The verdict is against law; (4) The judgment of the court is against law. These assignments raise only the question of the insufficiency of the evidence to justify the verdict.

C. S., sec. 9068, reads:

" . . . . Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing, a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court."

Appellants fail to specify in what particulars the evidence is insufficient to sustain the verdict. Under repeated holdings of this court a general specification to the sufficiency of the evidence to sustain the verdict without specifying in what particulars it is insufficient will not, under this section, require this court to consider the specification. (State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Poulos, 36 Idaho 453, 212 P. 120; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Maguire, 31 Idaho 24, 169 P. 175.)

It is a general rule of procedure in appellate courts that where the assignments are general, without any specification of particulars wherein it is claimed that the verdict or judgment thereon is not sustained by the evidence, or are against law, such assignments are too indefinite and the appellate court will not ordinarily consider such assignments or search the record in order to ascertain whether such specifications are well founded. The law presumes that where one has a substantial ground of complaint with regard to the action of the court below, such person should be required to state with some degree of particularity what it is, and not require the appellate court to embark upon an exploratory examination of the record in order to find it.

After the case was submitted on briefs without oral argument, appellants asked leave and were permitted to file a supplemental brief specifying wherein the evidence is insufficient to sustain the verdict or the judgment thereon, in that it is not made to appear in the transcript that the liquor found on the premises of appellants was or ever at any time had been in the possession of appellants or either of them, or that it was on said premises with the knowledge or consent of either of said appellants. In addition to this, that part of the original brief filed, under the general heading, "Argument," does discuss the particulars in which the evidence is claimed to be insufficient to support the verdict. In view of this state of the record we conclude to consider this assignment upon its merits.

C. S., sec. 2606, in part reads:

"It shall be unlawful for any person, firm, company or corporation, its officers or agents, to sell, manufacture or dispose of any intoxicating liquor or alcohol of any kind or to have in his or its possession or to transport any intoxicating liquor or alcohol unless the same was procured and is so possessed and transported under a permit as hereinafter provided . . . . "

Since the enactment of this statute (Sess. Laws 1915, c. 11, sec 2, p. 42), this and other courts in states having a similar statute have quite uniformly held that...