State v. Knutson

Decision Date04 February 1929
Docket Number5256
Citation274 P. 108,47 Idaho 281
PartiesSTATE, Respondent, v. HARRY KNUTSON, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW-FURNISHING LIQUOR TO MINORS-INFORMATION-DUPLICITY-MOTION IN ARREST OF JUDGMENT-ELECTION OF OFFENSES.

1. Under C. S., secs. 8870, 8878, 9019, any alleged duplicity in information cannot be considered on motion in arrest of judgment, in absence of a previous demurrer on that ground.

2. Information in one count charging the furnishing on a certain day of liquor to one girl fourteen years old and to another girl sixteen years old, without stating whether both were at one time and place and part of one transaction, imports a furnishing at same time to two minors NAMEd, and is not duplicitous.

3. Where, though information charging in one count the furnishing of liquor to minors was not duplicitous on its face, evidence tended to prove furnishing to one girl on three different occasions in as many separate places on day alleged and to the other girl at one of these times and places, defendant was entitled to have state required to elect on which it would stand.

4. Trial judge should not make any remarks or comments from which jurors might assume or believe that court has some feeling as to guilt or innocence of accused.

5. Error in the admission of incompetent evidence may ordinarily be cured by instructions to disregard the evidence improperly admitted.

6. Where evidence as to flight of defendant charged with unlawfully furnishing intoxicating liquor to a minor was only tentatively admitted by declaration of court that, unless flight was proved, evidence would be stricken, and thereafter court of its own motion struck out such testimony, and clearly admonished jury to disregard it, and offered to give further instruction at conclusion of case, if desired by defendant, any error in admitting testimony was cured.

APPEAL from the District Court of the Tenth Judicial District, for Lewis County. Hon. Miles S. Johnson, Judge.

Appellant was convicted of the crime of furnishing intoxicating liquor to a minor. Reversed and remanded.

Reversed and remanded.

McNamee & McCarty, for Appellant.

The court should have sustained the defendant's motion in arrest of judgment, as there was a duplicity of charges in the information, and evidence had been offered by the state on both charges in the information; and defendant had made a motion to require the state to elect upon which charge in the information it would rely for a conviction of the defendant at the opening of the trial, and renewed its motion after the state had rested its case, and the state had offered evidence to the jury showing two separate and distinct crimes, and therefore the defendant had been convicted of two separate and 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. 204.)

The court should have sustained the defendant's motion to require the state to elect upon which charge it would rely for a conviction of the defendant; that is, whether for the giving of intoxicating liquor to Opal Stapleton or the giving of intoxicating liquor to Edith Wright, or whether the state relied on the evidence offered as to a drink at the Harry Knutson ranch or a drink at the Cy Matthews cabin in the afternoon, or a drink on the road to the Cy Matthews cabin on the night of October 23, 1927. (C. S., sec. 8820; 14 R. C. L., sec. 42, pp. 198 and 199; State v. Bilboa, supra; State v. Hall, supra; State v. Cooper, supra; People v. Ruiz, 48 Cal.App. 693, 192 P. 327; Cummins v. People, 4 Colo. App. 71, 34 P. 734; State v. Finch, 71 Kan. 793, 81 P. 494; State v. Gomes, 9 Kan. App. 63, 57 P. 262; People v. Williams, 133 Cal. 165, 65 P. 323; People v. Martinez, 57 Cal.App. 771, 208 P. 170; State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

Frank L. Stephen, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

If an information is duplicitous, objection must be taken by demurrer to the same, or the right to object is waived. (People v. Nash, 1 Idaho 206; People v. Stapleton, 2 Idaho 47, 3 P. 6; C. S., secs. 8870, 8878; Kerr's Penal Code, secs. 1004, 1012; People v. Connor, 17 Cal. 354; People v. Shotwell, 27 Cal. 394; People v. Chadwick, 4 Cal.App. 63, 87 P. 384; People v. Gonzales, 72 Cal.App. 626, 237 P. 812.)

An information is not duplicitous and an election is not required where it charges the same offense against more than one person, where the offense arose out of one transaction or affair. (State v. Stevens, 81 Vt. 454, 70 A. 1060; State v. Johnson, 70 Kan. 861, 79 P. 732; Wilkinson v. State, 77 Miss. 705, 27 So. 639; State v. Nossaman, 107 Kan. 715, 20 A. L. R. 921, 193 P. 347; State v. Clark, 46 Ore. 140, 80 P. 101.)

HARTSON, District Judge. Budge, C. J., and Givens and Taylor, JJ., concur.

OPINION

HARTSON, District Judge.

Appellant was charged with the crime of furnishing intoxicating liquor to a minor, and prosecutes this appeal from the judgment of conviction.

Error is assigned in denying appellant's motion in arrest of judgment, because of alleged duplicity in the information. Appellant did not demur. Such defect, if present, cannot be considered on a motion in arrest of judgment, in the absence of a previous demurrer on that ground. (C. S., secs. 8870, 8878, 9019; People v. Nash, 1 Idaho 206; People v. Stapleton, 2 Idaho 47, 3 P. 6; People v. Shotwell, 27 Cal. 394.)

Error is specified upon denial of appellant's motions to require the state to elect upon which offense it would rely for conviction. Immediately after reading the information, and before the state's opening statement, appellant requested the court to require the state to elect upon which charge in the information it would rely. The court agreed to consider the matter further, but announced it would not require an election in any event until the conclusion of the evidence. Immediately following the state's opening statement, appellant again moved to require an election, because four or five different offenses had been mentioned. The court reserved a ruling until the conclusion of the state's testimony, and requested that appellant renew his motion at that time. This appellant did, but the motion was again denied.

The information charges in one count the furnishing on a certain day of liquor to one girl fourteen years old, and to another girl sixteen years old, without stating whether or not both were at one time and place and part of one transaction. Such an allegation imports a furnishing at the same time to the two minors named, and is not duplicitous. (Ray v. State, 29 Del. 440, 6 Boyce (Del.), 440, 100 A. 472; Shuford v. State, 4 Okla. Crim. 513, 113 P. 211; Wheatcraft v. State, 32 Okla. Crim. 379, 240 P. 753; State v. McCormick, 56 Wash. 469, 105 P. 1037. See State v. Sorensen, 37 Idaho 517, 216 P. 727.)

The evidence, however, tended to prove furnishings to one girl on three different occasions in as many separate places on the day alleged, and to the other girl at one of these times and places. When this was disclosed, the defendant was entitled to demand that the court require the state to elect upon which offense it would stand. (Hatcher & Shaw v. Commonwealth, 106 Va. 827, 55 S.E. 677; Kittrell v. State, 89 Miss. 666, 42 So. 609; Stick v. State, 23 Ohio Cir. Ct. Rep. 392; State v. Collins, 8 Kan. App. 398, 57 P. 38; State v. Rudy, 9 Kan. App. 69, 57 P. 263; State v. Barr, 78 Vt. 97, 62 A. 43; Walker v. State (Tex. Cr. App.), 72 S.W. 401; Durein v. Kansas, 208 U.S. 613, 28 S.Ct. 567, 52 L.Ed. 645, affirming 70 Kan. 1, 13, 78 P. 152, 80 P. 987, 15 L. R. A., N. S., 908; 2 Woollen and Thornton on the Law of Intoxicating Liquors, p. 1652. See, also, State v. Lancaster, 10 Idaho 410, 78 P. 1081.) In State v. Sorensen, supra, the information charged larceny of two animals on or about a certain day. The court said:

"By its terms, it charges a single offense; that is, the larceny of a cow and calf, which, irrespective of value, constitutes grand larceny in this state. All the testimony offered at the trial shows that the taking of this cow and calf, if they were stolen, were two separate and distinct offenses, which occurred at different times, and under such different circumstances that...

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