State v. Knilans
| Decision Date | 09 November 1923 |
| Docket Number | 5335. |
| Citation | 220 P. 91,69 Mont. 8 |
| Parties | STATE v. KNILANS. |
| Court | Montana Supreme Court |
Appeal from District Court, Daniels County; C. E. Comer, Judge.
W Knilans was convicted of unlawful sale and possession of intoxicating liquors, and he appeals from the judgment and an order denying a new trial. Affirmed.
Paul Babcock, of Plentywood, for appellant.
W. D Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.
In an information filed in the district court of Daniels county on January 6, 1922, it was charged that this defendant had violated the prohibitory liquor laws on or about December 26 1921. On January 16, 1923, that information was dismissed on motion of defendant and with the consent of the county attorney. On the same day a new information was filed, and thereafter a demurrer to that information was sustained. On February 5, 1923, an amended information was filed containing two counts; in the first count the defendant was charged with the unlawful sale of intoxicating liquor on or about December 26, 1921, and in the second count he was charged with the unlawful possession of intoxicating liquor on or about January 6, 1922. A plea of not guilty was entered, a trial had, and the defendant found guilty upon both counts. He has appealed from the judgment and from an order denying him a new trial.
1. Error is assigned to the order of the court overruling the demurrer to the original information. Upon the dismissal that pleading became functus officio, and the question now presented is purely a moot one, and will not be considered. Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont. 494, 124 P. 475.
2. It is contended that the amended information does not charge a public offense in either count, in that it fails to state (a) the kind of liquor possessed or sold, (b) the place where possessed or sold, or (c) the name of the person to whom the liquor was sold, and authorities from other jurisdictions are cited which would lend support for the contention but for the fact that section 14, c. 143, Laws of 1917 (section 11111, Rev. Codes 1921), specifically relieves the pleader from the necessity of alleging any of the facts mentioned (State v. Fredericks, 65 Mont. 25, 212 P. 495).
But counsel for defendant insists that the statutes above were repealed by chapter 9 of the Extraordinary Session of 1921 (section 11078, Rev. Codes 1921). In this counsel is mistaken. Section 39 of chapter 9, above, declares that certain sections of chapter 143, Laws of 1917, not including section 14, and other enumerated statutes, are repealed, and then concludes:
"Except as herein otherwise specified, this Act shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors."
There is not any conflict between the provisions of section 11078 and the provisions of section 11111 above; hence the general repealing clause found in the former does not affect the provisions of the latter.
3. While the first count of this information charged that the sale was made on or about December 26, the evidence in support of the charge all related to a sale made on December 3. Defendant now complains that he was prejudiced by the ruling of the court admitting the evidence, but the record is conclusive against him. It is disclosed that defendant was furnished a bill of particulars in which he was advised that the state would rely upon proof of a sale made on December 3 and was given the names of the persons to whom the alleged sale was made. But furthermore. when the state's testimony was concluded, the court invited the defendant to say whether he had been taken by surprise so that he could not properly defend against the charge, and defendant declined to say that he was so surprised and did not ask for a continuance. We do not mean to intimate that there was a material variance between the pleading and proof, but defendant is not now in a position to say that he was prejudiced in respect of any substantial right. Section 11874, Revised Codes 1921, declares:
"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."
4. To prove that defendant's possession of the liquor on January 6, 1922, was unlawful, the state introduced evidence to the effect that on December 26, 1921, defendant had unlawfully sold some of the same stock of liquors, and the liquors seized on January 6 were introduced in evidence. It appears from the record that in 1922, in a separate proceeding against these liquors, the court adjudged them forfeited and ordered them destroyed, and the contention is made that if the order had been obeyed the liquors would not have been in existence and could not have been used as evidence upon the trial of this case; hence it was error to permit them to be so used. The order did not designate any time within which the liquors should be destroyed; but, assuming that the order was disobeyed, the consequence of such disobedience might subject the officer to punishment for contempt, but could not affect the admissibility of the liquors as evidence.
It is contended further that evidence of an unlawful sale on December 25, 1921, could not be introduced to prove that the possession of the liquor was unlawful, for the reason that by the dismissal of the original information defendant was acquitted of the charge of selling liquor on December 26, 1921. But defendant is in error in assuming that that dismissal operated as an acquittal.
"The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and had pleaded, and a jury have been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach." 16 C.J. 236.
"It is a general rule that a nolle prosequi, dismissal or discontinuance, entered before...
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