State v. Lowry, 1018

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, Chief Justice.
Citation212 P. 768,29 Wyo. 267
PartiesSTATE v. LOWRY
Decision Date27 February 1923
Docket Number1018

212 P. 768

29 Wyo. 267

STATE
v.
LOWRY

No. 1018

Supreme Court of Wyoming

February 27, 1923


APPEAL from District Court, Platte County, HON.W. C. MENTZER, Judge.

George Lowry was convicted upon a charge of unlawfully selling intoxicating liquor, and appeals. The facts are stated in the opinion.

Reversed and Remanded.

W. L. Walls, Attorney General and Vincent Carter, Deputy, for respondents.

Specifications of errors numbered one to three inclusive are not argued in appellant's brief and are thereby waived. (Bank v. Ludvigsen, 8 Wyo. 257; Kennedy v. Bank, 22 N.D. 72; Vance v. Heath, 42 Utah 155;) specification number four that the trial court erred in permitting the introduction of evidence of sales other than as charged, is unsupported by objections or exceptions taken at the trial; the point cannot be first raised on appeal. (Clark v. Fredericks, 105 U.S. 4; King v. McLean Asylum, 64 F. 331; Robinson v. Springfield Co., 21 Fla. 203; Lomax v. Strange, 14 Ind. 21; Delaney v. Reed, 4 Iowa (4 Clark) 292; Robins v. Neal, 10 Iowa 560; Schohmer v. Lynch, 11 Iowa 461; Peck v. Hendershot, 14 Iowa 40; Starry v. Starry, 21 Iowa 254; Dickey v. Maine Tel. Co., 46 Me. 483; Mahiat v. Codde, 64 N.W. 194; Botse v. Burt, 34 Mo. 74; Schuchman v. Heath, 38 Mo. 280; In Re Simmonds, 19 P. St. (7 Harris) 439; International v. Johnson, 24 S.W. 939; Galveston v. Herring, 24 S.W. 939; O'Connor v. Kock, 29 S.W. 400;) nor was exception taken to the rule of the court in permitting witness S. A. Knight to testify as to other sales, and this point cannot be reviewed. (Atchinson v. Arnold, 11 Wyo. 351; Synd. Imp. Co. v. Bradley, 6 Wyo. 171; McCornick v. Phillips, 4 Dak. 506; Sullivan v. Whistler, 16 Ind. 200; Kendrick v. State, 68 Ind. 104; Hendrick v. Whitehorn, 145 Ind. 642; Russell v. Dennison, 45 Cal. 337;) it is apparent from the record that defendant conducted a soft drink parlor as a mere subterfuge and carried on unlawful liquor sales and the judgment of conviction should be sustained.

Marion A. Kline and Oscar O. Natwick, for appellant.

The record seems to be burdened with irrelevant and prejudicial evidence of other transactions and other alleged sales, all of which were received without apparent regard for the rules of evidence. It is well settled, that the admission of evidence of other offenses at criminal trials is not admissible, except under certain circumstances to show motive, intent or identity; (Fields v. Ter., 1 Wyo. 78; Horn v. State, 12 Wyo. 80;) as applied to prosecutions for illegal sales of liquor, the rule is universal that evidence of other sales is not admissible. (State v. Reynolds, Kan. 47, P. 573; Walker v. State, Tex. 72 S.W. 861; Swalm v. State, Tex. 91 S.W. 575; Baughman v. State, Tex. 90 S.W. 166; Johnson v. State, Tex. 62 S.W. 756; Erwin v. State, Ga. 49 S.E. 689; Cook v. State, Miss. 32 So. 312; Crimes v. State, Tex. 72 S.W. 862; People v. Dial, Cal. 153 P. 970; Smith v. State, Okla. 113 P. 204; Lee v. State, Tex. 73 S.W. 407; Allen v. State, Tex. 73 S.W. 397; Driver v. State, Tex. 85 S.W. 1056; Marks v. State, Tex. 78 S.W. 512; Belt v. State, Tex. 78 S.W. 932; Rock v. State, Ind. 110 N.E. 212; State v. Stike, Mo. 129 S.W. 1024; Day v. United States, 220 F. 818; Taliaferro v. United States, 213 F. 25; People v. Converse, Mich. 121 N.W. 475; Harris v. State, Tex. 97 S.W. 704; Campbell v. State, Tex. 116 S.W. 581; Spain v. State, Tex. 133 S.W. 1055; Devine v. Commonwealth, Va. 60 S.E. 37; Hyde v. State, Ala. 68 So. 673; Moore v. State, Ala. 64 So. 520; Hammock v. State, Ala. 62 So. 322; Hill v. City of Prattville, Ala. 69 So. 227.) The state having elected to prosecute for one alleged sale, cannot offer proof of other sales; (Devine v. Comm. 60 S.E. 37.) The trial court even went so far as to require witnesses at the trial to give the names of persons whom they had seen purchase liquor from defendant, thus taking an active part in bringing into the record, immaterial, irrelevant and incompetent evidence, which was prejudicial to the rights of defendant. The judgment should be reversed.

W. L. Walls, Attorney General, Vincent Carter, Deputy, in reply.

As to the point made in appellant's supplemental brief that the information fails to charge the alcoholic content of the liquor sold, we say that the point cannot first be raised on appeal but should be raised by motion to quash. (7483, C. S. 1920.) (Cook v. Territory, 3 Wyo. 110; Wilbur v. Territory, 3 Wyo. 268; Koppala & Lampe v. State, 15 Wyo. 416; McGinnis v. State, 16 Wyo. 90-91; Dickerson v. State, 18 Wyo. 459; White v. State, 23 Wyo. 147.) The point was waived by a plea of not guilty. (7487 supra.) (Wilbur v. Territory, 3 Wyo. 268; Miller v. State, 3 Wyo. 657; Koppalla & Lampe v. State, 15 Wyo. 416; McGinnis v. State, 16 Wyo. 90-91; White v. State, 23 Wyo. 148.) The point was raised too late and is without merit in any event. (People v. Comm. 188 N.Y.S. 46; Childers v. State, 111 P. 957.) The information charging an unlawful sale of intoxicating liquor, to-wit, whisky, is sufficient under our statute; courts will take judicial notice that whisky is a spirituous drink, (U. S. v. Ash, 75 F. 651; People v. Comm., 188 N.Y.S. 52.)

Marion A. Kline and Oscar O. Natwick, supplemental brief.

Certain propositions of law covered by specifications of error herein were inadvertently omitted in the original brief and counsel for appellant by leave of court herewith submit a supplemental brief; the information does not state that the liquor alleged to have been sold contained more than one per centum of alcohol nor was any evidence offered as to the alcoholic content thereof; the information therefore fails to state an offense under the laws of the state and there was insufficient evidence to sustain a conviction; an examination of the prohibition act will show that no definition of the kind of liquor prohibited is stated, except that wine is mentioned in two or three places; the only test under the law as to whether liquor is intoxicating within the meaning of the act, is whether it be capable of being used as a beverage and contains more than one per centum of alcohol; the sale of intoxicating liquor is a statutory offense and every element thereof must be set forth in the information (Ch. 25, Laws 1919.) (22 Cyc. 335) and every element must be proven; the information charging a sale of whisky without charging that it contained more than one per centum of alcohol; we find no authority holding that a court will take judicial notice that whisky contains more than one per centum of alcohol; the fact must be proven; it was not proven at the trial in this cause; the alcoholic content of liquor sold is the test, as to whether an offense is charged. (Berry v. U.S. 275 F. 680;) the mere judgment of a lay witness as to whether the liquor alleged to have been sold is intoxicating is insufficient. The above cause involved an offense under the Volstead Act and should be applicable to a prosecution under our statute (Ch. 25, Laws 1919.)

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION [212 P. 769]

[29 Wyo. 271] POTTER, Chief Justice.

The appellant was convicted of an offense under the first State Prohibition Act, which went into effect on June 30, 1919 (Laws 1919, Ch. 25,) and sentenced to pay a fine of $ 500 and the...

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5 practice notes
  • Tobin v. State, 1357
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Mayo 1927
    ...to be convicted of another crime but merely as relevant proof tending to establish his guilt of the offense charged." State v. Lowry, 29 Wyo. 267, 212 P. 768. We think it has been well said, upon this principle at least, that: "If the same person violates the statute by keeping more that on......
  • State v. Vines, 1887
    • United States
    • United States State Supreme Court of Wyoming
    • 11 Febrero 1936
    ...that appellant probably committed the offense for which he was being tried. Horn v. State, 12 Wyo. 80, 143, 73 P. 705; State v. Lowry, 29 Wyo. 267, 274, 212 P. 768. No instruction was asked or given limiting the purposes for which such evidence should be considered. We do not hold that eith......
  • Moncref v. State, 1287
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Junio 1925
    ...defendant was convicted of a different offense than that charged, which was contrary to law; Fields v. Ter. 1 Wyo. 78; State v. Lowry, 29 Wyo. 267; State v. Wilson (Wyo.) 228 P. 803; the verdict is therefore not sustained by evidence. Evidence of other checks alleged to have been forged may......
  • State v. Cesar, No. 5599.
    • United States
    • Montana United States State Supreme Court of Montana
    • 4 Febrero 1925
    ...of other sales without limiting the effect of the evidence by an appropriate instruction, and the same ruling was made in State v. Lowry, 29 Wyo. 267, 212 P. 768. From the record before us it appears that the defendant occupied a two-story building in the town of Laurin, that he rented the ......
  • Request a trial to view additional results
5 cases
  • Tobin v. State, 1357
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Mayo 1927
    ...to be convicted of another crime but merely as relevant proof tending to establish his guilt of the offense charged." State v. Lowry, 29 Wyo. 267, 212 P. 768. We think it has been well said, upon this principle at least, that: "If the same person violates the statute by keeping more that on......
  • State v. Vines, 1887
    • United States
    • United States State Supreme Court of Wyoming
    • 11 Febrero 1936
    ...that appellant probably committed the offense for which he was being tried. Horn v. State, 12 Wyo. 80, 143, 73 P. 705; State v. Lowry, 29 Wyo. 267, 274, 212 P. 768. No instruction was asked or given limiting the purposes for which such evidence should be considered. We do not hold that eith......
  • Moncref v. State, 1287
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Junio 1925
    ...defendant was convicted of a different offense than that charged, which was contrary to law; Fields v. Ter. 1 Wyo. 78; State v. Lowry, 29 Wyo. 267; State v. Wilson (Wyo.) 228 P. 803; the verdict is therefore not sustained by evidence. Evidence of other checks alleged to have been forged may......
  • State v. Cesar, No. 5599.
    • United States
    • Montana United States State Supreme Court of Montana
    • 4 Febrero 1925
    ...of other sales without limiting the effect of the evidence by an appropriate instruction, and the same ruling was made in State v. Lowry, 29 Wyo. 267, 212 P. 768. From the record before us it appears that the defendant occupied a two-story building in the town of Laurin, that he rented the ......
  • Request a trial to view additional results

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