State v. Lewis

• Decision Date: 04 March 1924
• Docket Number: 5405.
• Citation: 223 P. 915,70 Mont. 61
• Parties: STATE v. LEWIS.
• Court: Montana Supreme Court

223 P. 915

70 Mont. 61

STATE v. LEWIS.

No. 5405.

Supreme Court of Montana

March 4, 1924

Appeal from District Court, Hill County; Charles R. Rose, Judge.

Mike Lewis was convicted of unlawfully possessing intoxicating liquor, and appeals. Reversed, and remanded with directions.

Victor R. Griggs, of Havre, for appellant.

W. D Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

STARK J.

By verdict of a jury in the district court of Hill county rendered on the 29th day of September, 1923, the defendant in this action was found guilty of the crime of unlawfully possessing intoxicating liquor. From the judgment pronounced on this verdict, and the order of the court overruling his motion for a new trial, he has appealed.

The two specifications of error set out in appellant's brief present but a single question, viz. Is the evidence sufficient to sustain the verdict? In brief, the testimony given at the trial was as follows:

R. C Timmons, sheriff of Hill county, testified that on April 26 1923, he saw the defendant drive up between the courthouse and the county jail at Havre in a Dodge touring car, accompanied by Shanks, a deputy sheriff, and one Tracy Gee. The car and contents were in charge of the deputy sheriff Shanks, who was sitting in the back seat with Gee. In front of the back seat, covered up with a blanket and under Gee's feet, was a sack containing bottles. As the car stopped, the sheriff pulled the sack out of the car and asked defendant whether it was "beer," to which defendant answered, "yes." Thereupon the sheriff gave defendant a receipt for beer and took the sack and contents into the basement of the jail, and there discovered that the sack contained 23 bottles of whisky. Meantime the defendant, not having been placed under arrest, went away to his place of business, and Shanks drove the car to a garage. After discovering that the bottles inclosed in the sack contained whisky instead of beer, the sheriff went to the county attorney's office and had a receipt for the whisky made out, which he subsequently delivered to defendant. The defendant was arrested a few days after this transaction.

George Herron, a deputy sheriff, testified to substantially the same facts that had been related by the sheriff, except as to the delivery of the receipts, and in addition thereto told about a statement made by Shanks at some time, which witness did not remember, to the effect that he (Shanks) had "knocked the load over in the alley," and in explanation of this expression, in response to the question, "If you find a man transporting liquor and you arrest him and take his load, that is what you call knocking him over?" answered, "That is a common expression; yes."

The deputy sheriff Shanks was not present as a witness. It was shown, however, that the state had caused a subp na to be issued for him, but the same was not served for the reason that his connection with the sheriff's office had been severed, and his whereabouts was unknown.

In addition to the foregoing it was shown that the Dodge car in which the liquor was found belonged to defendant's wife and that the events narrated transpired in Hill county. Thereupon the state...