State v. Maguire

• Decision Date: 27 November 1917
• Citation: 169 P. 175,31 Idaho 24
• Parties: STATE, Respondent, v. MARTIN J. MAGUIRE, Appellant
• Court: Idaho Supreme Court

169 P. 175

31 Idaho 24

STATE, Respondent, v. MARTIN J. MAGUIRE, Appellant

Supreme Court of Idaho

November 27, 1917

CRIMINAL LAW-INTOXICATING LIQUORS-NUISANCE-EXCEPTIONS-EVIDENCE-SUFFICIENCY OF-CONTINUING CRIME-SEPARATE OFFENSE-ADMISSIBILITY OF RECORDS.

1. In order to procure a review of an order of the trial court in refusing to set aside an indictment or information, or overruling a demurrer, an exception to such order must be saved in the record.

2. Orders refusing to set aside an indictment and disallowing a demurrer are not appealable, and can be reviewed by this court only on appeal from a final judgment when properly presented by the record on appeal.

3. Where the exceptions provided for in sec. 7942, Rev. Codes are not taken and saved at the time the order complained of was made, or if they were not properly presented in the record by bill of exceptions, the objections are waived and cannot be considered in this court on appeal.

4. The action of the trial court in overruling a motion for arrest of judgment cannot be considered by this court where no such motion and order has been incorporated in the record.

5. Under the statutes of this state the sufficiency of the evidence to sustain the judgment may be inquired into without the formal motion for a new trial, "provided, a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court."

6. The record on appeal in a criminal case, containing a reporter's transcript, does not present the question of the insufficiency of the evidence to support the verdict unless the appellant in his brief points out the particulars in which the evidence is alleged to be insufficient.

7. The crime of maintaining a liquor nuisance under our statutes is a continuing offense.

8. Where the defendant is charged with maintaining a liquor nuisance on the 29th day of January, 1915, and evidence is introduced to sustain the information as to that date, and further evidence is introduced to show that the defendant was maintaining a liquor nuisance on the 8th day of September 1914, the latter evi- dence is admissible where evidence is also introduced tending to show a continuation of the nuisance between the two dates.

9. Evidence is admissible of acts, conduct or declarations of the accused which tend to establish knowledge, intention or motive, notwithstanding the fact that it may disclose a different crime from that charged in the information.

10. The original records of liquor shipments of express companies railroad companies, public or private carriers, prepared in accordance with sec. 6, chap. 27, Sess. Laws 1913, p. 126 are admissible in evidence under the laws of this state without identification of the signature of the consignee.

[As to recovery of cumulative penalties under penal statute, see note in Ann.Cas. 1912A, 820]

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Appellant was convicted of maintaining a common nuisance in a prohibition district. Affirmed.

Affirmed.

William P. Hanson, for Appellant.

The state cannot prove against the defendant any crime not alleged, either as the foundation for separate punishment or for the purpose of aiding to prove that he is guilty of the one charged. (People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L. R. A. 193, and note which reviews the authorities; 2 Woolen and Thornton on Intoxicating Liquors, sec. 931; State v. Gillies, 40 Utah 541, 123 P. 93, 43 L. R. A., N. S., 776, 777.)

J. H. Peterson, former Atty. Genl., T. A. Walters, Atty. Genl., and J. P. Pope, Assistant, for Respondent.

On a trial for selling liquors illegally, the books of an express company are competent evidence to show the shipment and delivery of goods to the buyer, and the dates thereof. (State v. Kriechbaum, 81 Iowa 633, 47 N.W. 872; Commonwealth v. Neylon, 159 Mass. 541, 34 N.E. 1078; State v. Johns, 140 Iowa 125, 118 N.W. 295; People v. Aldorfer, 164 Mich. 676, 130 N.W. 351; State v. Baker, 67 Wash. 595, 122 P. 335; State v. Silva, 21 Idaho 247, 120 P. 835; Klepfer v. State, 121 Ind. 491, 23 N.E. 287; F. Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38, 71 N.W. 69; Northern Pacific Ry. Co. v. Keyes, 91 F. 47.)

Where a drug-store is used as a cloak for indulging in illegal liquor traffic, the place of business becomes a nuisance under the 1913 and 1911 acts. (State v. Salts, 77 Iowa 193, 39 N.W. 167, 41 N.W. 620; State v. McGruer, 9 N.D. 566, 84 N.W. 363; State v. Donovan, 10 N.D. 203, 86 N.W. 709; Commonwealth v. Gould, 158 Mass. 499, 33 N.E. 656.)

Wherever intent is a material ingredient of the offense, evidence of similar offenses is always admissible, and the remoteness of the offense does not affect the admissibility. (State v. O'Neil, 24 Idaho 582, 135 P. 60.)

It is not necessary to discuss in detail the sufficiency of the evidence, since defendant abandoned his motion for a new trial, but the following authorities conclusively preclude any importance being attached to that contention: State v. Clark, 4 Idaho 7, 35 P. 710; State v. Carlson, 23 Idaho 545, 550, 130 P. 463; State v. Layman, 22 Idaho 387, 125 P. 1042.

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

Martin J. Maguire was convicted of the crime of maintaining and assisting in maintaining a common nuisance, committed by occupying, maintaining and controlling a place in a prohibition district where intoxicating liquors were kept for sale, delivery, distribution or disposal in violation of law.

There are six assignments of error. The first assignment is that the court erred in denying defendant's motion to quash the information, and the second is that the court erred in overruling defendant's demurrer.

In order to procure a review of the order of the trial court in refusing to set aside an indictment or information or overruling a demurrer, an exception to such order must be saved in the record. Sec. 7942, Rev. Codes, reads as follows:

"Exceptions may be taken by either party to the decision of a court or judge upon a matter of law:

"1. In granting or refusing a motion to set aside an indictment;

"2. In allowing or disallowing a demurrer to an indictment;

"3. In granting or refusing a motion in arrest of judgment;

"4. In granting or refusing a motion for a new trial;

"5. In making, or refusing to make, an order after judgment, affecting any substantial right of the parties."

Orders refusing to set aside an indictment and disallowing a demurrer are not appealable and can be reviewed by this court only on appeal from a final judgment when properly presented by the record on appeal. (Sec. 8042, Rev. Codes, amended 1915 Sess. Laws, p. 324, and sec. 8043, Rev. Codes.) The method of presenting to this court questions of law arising out of the action of the court in granting or refusing a motion to set aside an indictment or allowing or disallowing a demurrer to an indictment are prescribed by sec. 7944, Rev. Codes. Secs. 7942 and 7944 have not been amended. Chapters 146, 147, 148, 149 and 150, 1915 Sess. Laws, make provision for the record on appeal in criminal cases. These chapters also provide for the procurement of transcript of the testimony at a trial, including instructions of the court given or refused, in lieu of bill of exceptions. But these chapters do not make any provision for the presentation of the exceptions provided for in sec. 7942 of the Code.

The method prescribed by sec. 7944 is the only one known to our laws for the presentation of the exceptions therein provided for. It has been held uniformly that where the exceptions provided for in sec. 7942 were not taken and saved at the time the order complained of was made, or if they were not properly presented in the record by bill of exceptions, the objections are waived and cannot be considered by this court on appeal. (State v. Baker, 28 Idaho 727, 156 P. 103; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Smith, 5 Idaho 291, 48 P. 1060.)

The record in this case does not show any exception taken to the orders of the court complained of, nor does it contain any bill of exceptions presenting the questions to this court.

Appellant also assigns as error the action of the trial court in overruling his motion for arrest of judgment. No such motion appears in the record in this court, and therefore the same cannot be considered.

The appellant relies upon sec. 8042, Rev. Codes, as amended 1915 Sess. Laws, p. 324, to have the sufficiency of the evidence to sustain the judgment of conviction inquired into without the formal motion for a new trial. Said section reads as follows:

"An appeal may be taken by the defendant:

"1. From a final judgment of conviction;

"2. From an order denying a motion for a new trial;

"3. From any order made after judgment, affecting the substantial rights of the party.

"Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, providing, a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the Supreme Court."

Sec 7941, Rev. Codes, as amended 1915 Sess. Laws, pp. 320, 321, and sec. 7946-A, 1915 Sess. Laws, pp. 321-323, make provision for a reporter's transcript to be used in lieu of a bill of exceptions in order to present for review exceptions taken at a trial, and said sec. 7946-A provides that such reporter's transcript shall be adequate to present for review any question of...