State v. Layman
| Citation | 125 P. 1042,22 Idaho 387 |
| Parties | STATE, Respondent, v. HERMAN LAYMAN, Appellant |
| Decision Date | 21 August 1912 |
| Court | United States State Supreme Court of Idaho |
MISDEMEANOR-INTOXICATING LIQUORS-DISPOSAL OF-PROHIBITION DISTRICT-PRELIMINARY EXAMINATION-SUFFICIENCY OF EVIDENCE-DISCRETION OF COMMITTING MAGISTRATE-REASONABLE AND PROBABLE CAUSE-SUFFICIENCY OF INFORMATION-INSTRUCTIONS-VERDICT-SUFFICIENCY OF EVIDENCE TO SUPPORT.
(Syllabus by the court.)
1. Held, that the committing magistrate did not abuse his discretion in requiring the defendant to appear for trial in the district court.
2. It is not necessary for the committing magistrate to be convinced beyond a reasonable doubt that one accused of crime is guilty thereof, but if from all of the evidence he has reasonable or probable cause to believe, and does believe that the accused is guilty, it is his duty to hold him for trial.
3. Held, that the information sufficiently charges the crime of which the defendant was convicted.
4. Where counsel for defendant suggests to the court that the jury be permitted to take to the jury-room the session laws containing the sections of the statute under which the prosecution was had, and the court grants the request and declines to give in addition thereto instructions covering the sections of the statute referred to, held not error.
5. Held, that the evidence is sufficient to support the verdict.
APPEAL from the District Court of the Ninth Judicial District, in and for Fremont County. Hon. James G. Gwinn, Judge.
Defendant was convicted of maintaining a common nuisance in keeping for sale, delivery or distribution, in violation of law intoxicating liquors, and was sentenced to pay a fine of $ 500. Judgment affirmed.
Affirmed.
Millsaps & Moon, for Appellant.
The depositions taken at the preliminary examination do not disclose that any public offense was committed by the defendant or that there was probable cause to believe the defendant guilty of the offense charged in the information or any offense, and that the defendant had been committed and held to answer without any reasonable or probable cause for believing the defendant guilty of the offense charged, or any offense at all. (In re Knudtson, 10 Idaho 676, 76 P 641.)
The mere finding of intoxicating liquors in a dwellinghouse is no evidence at all that the person is maintaining a common nuisance and these depositions contain no other evidence whatever. (State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Rice v. State, 5 Okla.Crim. 68, 113 P. 203; State v. Clark, 4 Idaho 7, 35 P. 710; State v. Farris, 5 Idaho 666, 51 P. 772; State v. McGann, 8 Idaho 40, 66 P. 823; Ex parte McConnell, 83 Cal. 558, 23 P. 1119; State v. McGreevey, 17 Idaho 453, 105 P. 1047; In re Sly, 9 Idaho 779, 76 P. 766; In re Squires, 13 Idaho 624, 92 P. 754.)
In the following cases the evidence has been held insufficient to support the verdict upon similar charges: McLin v. City of Griffin, 7 Ga.App. 607, 67 S.E. 686; Loeb v. City of Atlanta, 8 Ga.App. 97, 68 S.E. 624; Johnson v. State, 6 Okla. Cr. 490, 119 P. 1019; Byler v. State, 6 Okla. Cr. 698, 119 P. 1022; McComb City v. Hill (Miss.), 46 So. 346.
D. C. McDougall, Attorney General, J. H. Peterson, Assistant Attorney General, and B. H. Miller, for Respondent.
In a preliminary examination, the state is not bound to produce all of its evidence, and if it produces sufficient to satisfy the committing magistrate that a crime has been committed and that there is reasonable and probable cause to believe that the petitioner committed it, it is the duty of the magistrate to hold the petitioner for trial. (In re Squires, 13 Idaho 624, 92 P. 754.)
The defendant was convicted of maintaining a common nuisance, and was charged by the information with wilfully and unlawfully, within a prohibition district, maintaining a place where intoxicating liquors were sold, furnished, delivered, given away or otherwise disposed of, in violation of law, and was sentenced to pay a fine of $ 500, and in default of payment, was ordered to be confined in the county jail until said fine be paid, at the rate of two dollars per day.
A motion for a new trial was denied, and this appeal is from the judgment and order denying a new trial.
Numerous errors are assigned and a reversal of the judgment demanded. On the filing of the information in the district court, counsel for appellant moved to set aside and quash the information, on the ground that the depositions taken at the preliminary examination were not sufficient to justify the committing magistrate in binding the defendant over to the district court. We think the testimony introduced in the preliminary examination was sufficient to satisfy the committing magistrate that a crime had been committed and that there was reasonable and probable cause to believe that the defendant committed it, and that being true, it was the duty of the magistrate to hold the petitioner for trial, and it was not an abuse of his discretion to do so.
This court held in In re Squires, 13 Idaho 624, 92 P. 754, that "By 'reasonable or probable cause' is meant such evidence as would lead a reasonable person to believe that the accused party has probably or likely committed the offense charged," and that the phrase "reasonable or probable cause," as used in subd. 7 of sec. 8354, Rev. Stat. 1887, is not equivalent to the phrase "beyond a reasonable doubt."
The statute under which this prosecution was had is commonly known as the "Search and Seizure Act," passed by the eleventh session of the legislature. (See Sess. Laws 1911, p. 31.) The learned counsel for the defendant argues that as the liquor found was in a private residence, under no circumstance could that be construed to be sufficient evidence to make a prima facie case under said statute, and that a prima facie case must be made before the committing magistrate has any authority to bind the defendant over to the district court. On a careful examination of the evidence produced at the preliminary examination, it is revealed that there was circumstantial evidence, aside from the mere finding of liquor at the residence of defendant, sufficient to justify the committing magistrate in binding the defendant over to the district court. One hundred and twenty-five half-pint bottles of liquor were found at the residence of the defendant, and the finding of this quantity of liquor in half-pint bottles is a circumstance which goes to show that the defendant was engaged in disposing of such liquor. Would a private party keeping liquor in his residence for his own use, be apt to purchase 125 half-pint bottles, when one, two or three would have been sufficient for him? The fact that the whisky was kept in half-pint bottles, a quantity commonly sold and easily handled, is a...
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