State v. Lowry

CourtUnited States State Supreme Court of Wyoming
Citation212 P. 649,29 Wyo. 251
Docket Number1019
PartiesSTATE v. LOWRY
Decision Date20 February 1923

APPEAL from the District Court, Platte County; HON. WM. C. MENTZER Judge.

George W. Lowry was tried and convicted on a charge of unlawful possession of intoxicating liquor, and appeals. The material facts are stated in the opinion.

Reversed and Remanded.

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

The information does not charge an offense. The possession of intoxicating liquor purchased prior to June 30th, 1919 for individual use is not unlawful. The Prohibition Act, Chapter 25 L. 1919, as appears from its title is an act to prohibit liquor traffic; the word "traffic" involves the idea of commerce or trade and means nothing else. Mere possession of intoxicating liquor is not included within the intention of the statute as indicated by its title. Section 25 of the Act, relating to the issuance of search warrants indicates that the legislature intended that one might lawfully possess intoxicating liquor in his own home and be safe from search, seizure and arrest. The information does not charge facts showing unlawful possession. The trial court erred in refusing to give defendant's requested instruction as to the right of defendant to possess intoxicating liquor in his dwelling, and in further refusing to submit the question as to whether the liquor found in defendant's possession was kept by him for individual use and not for sale. The court erred in giving instruction number six, to the effect that if the building where the liquor was found was used for any purpose other than a private dwelling the verdict should be guilty. The court erred in admitting in evidence over defendant's objection testimony of other alleged offenses, to-wit, the playing of poker in defendant's place of business, which, if an offense, is of an entirely different one from that charged in the information and the only purpose served by such evidence would be to prejudice the jury against defendant. Some testimony was admitted with reference to sales of intoxicating liquor by defendant, whereas the information merely attempted to charge unlawful possession. (Coleman v. People, 55 N.Y. 81; State v. Reynolds, 47 P 573; Walker v. State, 72 S.W. 861; People v Converse, 121 N.W. 475; Taliaferro v. U.S. 213 F. 25.) The verdict and judgment should be reversed.

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

The repetition in the information of the words "did then and there unlawfully" is mere surplusage and does not vitiate the information which contains sufficient matter to charge an offense. The suggestion that the title of Chapter 25 Laws 1919 is insufficient to support a statute prohibiting mere possession of intoxicating liquor, in that Section 24, Article III of the Constitution prohibits the inclusion of any subject in an act which is not expressed in its title, is without merit. This court has decided the point adverse to appellant's contention in the following cases: (In re Boulter, 5 Wyo. 339; In re Fourth Judicial District, 4 Wyo. 140; Comm'rs. v. Stone, 7 Wyo. 290.) If the provisions of the Act are germane to the subject expressed in the title that is sufficient. The Prohibition Law is a police regulation and is to be liberally construed for the accomplishment of its purpose. (Atchison v. Everett, 1 Coup. 391; Turtle v. Hartwell, 7 T. R. 426; Johnes v. Johnes, 3 Dow. 15; Moody v. Threlheld, 13 Ga. 55.) It is the clear intention of the Act that the possession of liquor for some improper purpose should be forbidden since such possession is unlawful. An unlawful possession is charged, but the use of the word "unlawful" is assailed by appellant as a mere conclusion. The word "unlawful" is a necessary part of every indictment or complaint when the statute uses it in describing the offense. (State v. Skolfield, 29 A. 922; State v. Concord, 29 N.H. 85.) Appellant complains of the giving if instruction number six, contending that the instruction makes a distinction where the law makes none. The instruction in substance states that it is not unlawful for one to own, possess and keep intoxicating liquor in his private residence while the same is occupied and used as such, if such liquor be for his personal use; also that it is unlawful to own, possess and keep intoxicating liquor in a building used for any purpose, except a private dwelling without a permit from the prohibition commissioner. The instruction seems to be a fair statement of the law on the subject. The contention of appellant that if any part of a building wherein intoxicating liquor is found, is used in part as a private residence, then the whole building becomes a private residence. There is nowhere in the Prohibition Act anything to show that this was the intention of the legislature. The building here involved, as shown by the evidence, was not a private residence, hence there was no error in refusing to give instructions numbered nine and ten requested by defendant. The brief of appellant contains an unwarranted attack upon the court and the public prosecutor. It is stated therein that the prosecution was allowed to prove everything and anything that would place defendant in a bad light, or tend to prejudice the jury against him. Our views on this are expressed in Tomlinson v. Territory, 7 N. Mex. 214. The evidence of specific sales was introduced for the purpose of showing that the liquor found in possession of appellant was for an unlawful purpose. Based on the theory advanced by defendant, that since appellant occupied one of the rooms in the building as a living room, it constituted a dwelling, and that the liquor was for his private use, evidence of previous sales was admissible. (Lane v. City, 12 Ala. 599; Taggart v. City, 12 Ala. 618.) The admission of evidence of sales is proper as it tended to prove defendant's guilt. (Moore v. U.S. 150 U.S. 57; People v. Rogers, 71 Cal. 565; McDonald v. People, 25 Ill.App. 350; State v. Folwell, 14 Kan. 105; State v. Fontenot, 48 La. Ann. 305; Com. v. Call, 38 Mass. 515; People v. Marble, 38 Mich. 117; State v. Madigan, 57 Minn. 425; State v. Braunschweig, 36 Mo. 587; Stout v. People, 4 Parker, C. R. 71 (N. Y.); Williams v. State, 15 Tex.App. 104.) The cases cited by appellant against the admission of evidence of other offenses are not in point in view of the facts in the case at bar. In a trial for unlawful sale of intoxicating liquor, evidence of other sales is admissible on the question of intent. (Commonwealth v. Cotton, 138 Mass. 500; Commonwealth v. Sinclair, 138 Mass. 493; Milan v. State, 146 S.W. 185.) It is also complained that evidence of gambling, poker games, etc. conducted in defendant's place of business was improperly admitted, but no exception was taken to the admission of this evidence and the point is not reviewable. (Atchison v. Arnold, 11 Wyo. 351; Syndicate Imp. Co. v. Bradley, 6 Wyo. 171; Miller v. Kingsbury, 8 Fla. 356; Rothlishberger v. Casperi, 12 Mo.App. 514.)

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

OPINION

POTTER, Chief Justice.

An information was filed in the District Court for Platte County, under what was known as the State Prohibition Act of 1919, which went into effect on June 30, 1919, charging that the appellant Lowry, on the first day of November, 1919, in said county, did "then and there unlawfully, in a certain saloon building and in a certain ice house in the rear of said saloon building, said saloon building and the ice house not being used for residence purposes, possess a certain quantity of intoxicating liquor, to-wit, whisky, without having procured from the State Prohibition Commissioner a permit to have in his possession intoxicating liquors for purposes excepted by law." He was convicted and sentenced to pay a fine of $ 500. The case is here on direct appeal.

The testimony on behalf of the prosecution was to the effect that since June 30, 1919 no permit had been issued to appellant to possess or sell intoxicating liquors for purposes excepted by law, and that, upon a search by the sheriff on or about November 1, 1919, of an old saloon building occupied by the appellant, there was found therein "behind the bar" one pint of whisky of the "White House Club" brand, and in the same place, or under the bar, an empty bottle bearing the same brand, and also in an old building in the rear of said saloon building, which appeared to be or to have been an ice house, two cases of White House Club liquor, which the appellant admitted belonged to him. The testimony showed also that the appellant conducted in said main building a business known as a soft drink parlor or saloon, in which was sold also tobacco, cigars and candies. The defendant testified that prior to June 30, 1919, he had purchased for his own individual use the liquor found by the sheriff, and had not sold or given to anybody any of the liquor after that date. He testified further that he was a...

To continue reading

Request your trial
6 cases
  • Tobin v. State
    • United States
    • Wyoming Supreme Court
    • May 3, 1927
    ... ... State, (Wyo.) 194 P. 342; ... Wiggin v. State, (Wyo.) 206 P. 373; State v ... George, (Wyo.) 231 P. 683; McFadden on Prohibition, Sec ... 36, 42-43. The court erred in receiving testimony of other ... offenses than the offense charged; Fields v ... Territory, 1 Wyo. 78; State v. Lowry, 29 Wyo ... 251; State v. Wells, 29 Wyo. 335; Johnson v ... Comm., (Ky.) 256 S.W. 388; Elliott v. State, ... (Ariz.) 164 P. 1179. The verdict of the jury is silent ... on the second count and acquittal thereon is presumed; 27 R ... C. L. Sec. 28; State v. Casey, (Mo.) 105 S.W. 645; ... ...
  • Tucker v. State ex rel. Snow
    • United States
    • Wyoming Supreme Court
    • December 7, 1926
    ...Jones v. U.S., 209 F. 585. A defendant charged with one offense, cannot be convicted of another; Fields v. Territory, 1 Wyo. 78; State v. Lowry, 29 Wyo. 251; State Wells, 29 Wyo. 335. The title of Chapter 117, Laws 1921, is defective; in re Judicial District, 4 Wyo. 133; State v. Tobin, (Wy......
  • State v. Boner
    • United States
    • Wyoming Supreme Court
    • May 21, 1930
    ...the incompetent and irrelevant testimony introduced by the prosecution and received at the trial, the cause should be reversed. State v. Lowry, 29 Wyo. 251, 357. court erred in refusing the right to cross-examine the witness Wyckoff to show his bias and corrupt intent. State v. Wilson, 32 W......
  • Rosencrance v. State
    • United States
    • Wyoming Supreme Court
    • October 14, 1925
    ...place had no necessary connection, so far as we can see, with the sale or gift of liquor there by defendant. In the case of State v. Lowry, 29 Wyo. 251, 212 P. 649, defendant was charged with the possession of intoxicating liquor in a place which seems to have been similar to the Murphy pla......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT