State v. Lindsey
| Decision Date | 30 November 1928 |
| Docket Number | 21177. |
| Citation | 272 P. 72,150 Wash. 121 |
| Parties | STATE v. LINDSEY. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge.
Frank Lindsey was convicted of the unlawful manufacture of intoxicating liquor for purpose of sale, barter, and exchange, and he appeals. Remanded, with instructions.
George Downer, of Bellingham, and W. L. Brickey of Mt. Vernon, for appellant.
Edwin Gruber and E. D. Kenyon, both of Bellingham, for the State.
On about April 27, 1927, the sheriff of Whatcom county was informed that a still was located on the property of one Prevost located near a place called Geneva, not far from Bellingham. On April 27 the sheriff and his deputies raided the still. The still was situated in a large stillhouse so construced as to be somewhat inaccessible and contained a large still, which was set up and operating. The officers seized the still and equipment, and also found and seized about 20 gallons of moonshine whisky in the stillhouse and a 52-gallon barrel of moonshine whisky a short distance from the still, under a search warrant. There were four large vats of corn mash visible when the officers entered the still. Appellant and his son, Eugene Lindsey, were found in the stillhouse and arrested. The still and whisky were seized. When arrested appellant was in the act of changing his wet shoes, which were covered with corn mash, to dry dress shoes. He was asked by one of the officers according to the evidence, 'when they started,' and replied, 'About midnight.' While the officers were watching the stillhouse and before they entered it, appellant was seen to come out, go up to a stump, fill a lantern, come back to the stillhouse, and the officers then heard a noise as of some one shoveling coal and of escaping steam. Appellant and his son were brought to trial under the second amended information which, in substance, charged appellant and Eugene Lindsey with the crime of 'unlawful manufacture of intoxicating liquor for the purpose of sale barter and exchange thereof,' and also charged appellant with three prior convictions under the liquor law. Upon a trial upon the information the jury found appellant guilty as charged, and found Eugene Lindsey guilty of the crime of unlawful manufacture of intoxicating liquor, other than alcohol, for the purpose of sale, barter, and exchange thereof.
Motions in arrest of judgment and for a new trial were seasonably made and denied. The court entered judgment against appellant and sentenced him to imprisonment in the state penitentiary for an indeterminate term. Frank Lindsey alone appeals.
The first assignments of error attack the sufficiency of the information. The information reads:
Appellant asserts that while the information mentioned three specific prior convictions of appellant, they are all mentioned by way of recital only and make no direct accusation as to these prior convictions. The language of the information, 'the said Frank Lindsey having heretofore been convicted three times of a violation of the liquor laws of the state of Washington as follows' is relied upon as being the substance of the accusation and which amounts only to a recital and not to a direct allegation.
31 C.J. 660, to the effect that prior convictions are material matters which cannot be sufficiently alleged by way of recital only, and Cooper v. Commonwealth, 134 Va. 545, 113 S.E. 863, Smith v. State, 75 Fla. 468, 78 So. 530, are cited and relied upon as sustaining this contention. It is also insisted that our own cases of State v. Spencer, 130 Wash. 595, 228 P. 689, involving an information under the habitual criminal statute, and State v. Magnusson, 128 Wash. 541, 223 P. 325, sustain this contention.
The cases from other states cited by appellant are illustrated by the following from Cooper v. Commonwealth, 134 Va. 545, 113 S.E. 863, where the indictment merely alleged 'The said Rich Cooper having heretofore * * * been convicted of unlawfully manufacturing, selling * * * ardent spirits,' etc. This appears to have been the only attempted allegation of former convictions.
But in the instant case the information introduced the prior convictions by a recital as quoted, and then proceeds to directly allege that appellant had been previously convicted of violation of the liquor laws at the times and in the courts stated in the information, alleging three specific previous convictions. These were certainly direct accusations and not mere recitals. That they are sufficient allegations seems to be well established in this state. State v. Cotz, 94 Wash. 163, 161 P. 1191; State v. Gilfilen, 124 Wash. 434, 214 P. 831; State v. Spencer, 130 Wash. 595, 228 P. 689; and State v. Edelstein, 146 Wash. 221, 262 P. 622.
It is further contended that the information under which appellant was prosecuted was based upon the third paragraph of section 1, c. 122, Laws 1921, the material portion of which reads as follows:
But it is argued that in an effort to convict appellant of a felony and send him to the penitentiary the state sought to prosecute him under section 15, c. 19, Laws 1917, which reads:
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State v. Johnston, s. 2046--I
...convictions of sister states, are accorded full faith and credit and their validity may not be collaterally attacked. State v. Lindsey, 150 Wash. 121, 272 P. 72 (1928). The rule does not apply, however, when the foreign judgment challenged is void for want of jurisdiction. Brown v. Brown, 4......
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High v. High
...whatsoever as to the statutory ground for vacating the default decree, it must be presumed that some proper ground existed. State v. Lindsey, 150 Wash. 121, 272 P. 72. In earlier decisions involving the question of the finality of a divorce decree as to property matters, we have indicated t......
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State v. Harkness
... ... we think it was proper for the reporter to read her notes ... into the record. Duffy v. Blake, supra; Davis v ... Associated Fruit Co., 135 Wash. 614, 238 P. 629; ... Preston v. Metropolitan Life Ins. Co., 198 Wash ... 157, 87 P.2d 475. State v. Lindsey, 150 Wash. 121, ... 272 P. 72, is not applicable herein, as in the cited case the ... admission claimed to have been made by Lindsey was made upon ... cross-examination in his own case ... Counsel ... for appellant moved for a directed verdict at the close of ... ...
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Esparza, In re
...name was the same. That is true here. The given name of Cipriano was accurately stated. The principle was applied in State v. Lindsey, 150 Wash. 121, 129, 272 P. 72 (1928), holding Lindsay was idem sonans with The cases applying idem sonans are legion. A few examples show that the minor var......