State v. Marchindo

• Citation: 211 P. 1093,65 Mont. 431
• Decision Date: 18 December 1922
• Docket Number: 5165.
• Parties: STATE v. MARCHINDO.
• Court: United States State Supreme Court of Montana

211 P. 1093

65 Mont. 431

STATE v. MARCHINDO.

No. 5165.

Supreme Court of Montana

December 18, 1922

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

W. Joe Marchindo was convicted of offenses against the prohibitory law, and from the judgment of conviction, and from the order denying his motion for a new trial, he appeals. Judgment and order affirmed.

Lamb & Malloy, of Butte, for appellant.

W.

D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

FARR J.

Defendant was convicted in the district court of Silver Bow county on each of the three counts of an information charging him with unlawfully selling intoxicating liquors, unlawfully possessing intoxicating liquors, and unlawfully maintaining a common nuisance, and he appeals from the judgment of conviction and from the order denying his motion for a new trial.

The first specification of error argued by appellant is based on the refusal of the court to require the state to elect upon which count it would rely for a conviction. There is not any merit in the contention.

The information charges three separate offenses. Whether each offense grew out of the same act or transaction cannot be told from the information itself. Each count charges a violation of the prohibition laws, which by section 11078 Revised Codes of 1921 (section 31, c. 9, Ex. Sess. 1921), provides that--

"In any affidavit, information, or indictment for the violation of this act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed. * * *"

Regardless of whether it is permissible under this section to unite separate offenses in separate counts in the same indictment, the question cannot be raised by a motion to require the prosecution to make an election of the offenses charged, i. e., the one upon which it would seek conviction. Such objection, when available, can be taken only by demurrer. Sections 11898 and 11906, Rev. Codes 1921; State v. Kanakaris, 54 Mont. 180, 169 P. 42. The motion to elect, however, in view of our conclusions as to the sufficiency of the information referred to and discussed in other parts of this opinion, was not available to the defendant for any purpose.

Defendant, by specifications of error, questions the validity of the verdict and the judgment entered thereon. He was found guilty of each of the three offenses charged, and the jury fixed a punishment for each. On the first count, for the unlawful selling of intoxicating liquors, 30 days and $25 fine; on the second count, for the unlawful possession of intoxicating liquors, $25 fine; and on the third count, for unlawfully maintaining a common nuisance, 30 days and $100 fine, upon which judgment was rendered imposing a total jail sentence of 60 days and a total fine of $150.

It is defendant's contention that the jury could not properly have found the defendant guilty of all three offenses, and that consequently the verdict and the judgment entered thereon are invalid. Counsel base their contention largely upon the language of section 11581 of the Revised Codes of 1921, which provides:

"An act or omission which is made punishable in different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. * * *"

This section came into our criminal practice act with the adoption of the Codes of 1895. California and Idaho each have similar statutory provisions. The courts of California have not, so far as we have been able to find, expressly construed the language of their statute. Section 654, California Penal Code.

The Supreme Court of Idaho, in the case of State v. Gutke, 25 Idaho, 737, 139 P. 346, had under consideration the provisions of the Idaho statute. In that case the defendant was tried and acquitted upon the charge of selling two bottles of beer to a minor in violation of the law which makes it a misdemeanor to sell intoxicating liquor to a minor. He was thereafter charged, based upon the same transaction, with selling intoxicating liquor in violation of the local option statute which makes it a misdemeanor to sell intoxicating liquor within a prohibition district. On the trial of the latter charge, the defendant pleaded "not guilty" and "former acquittal," his plea of former acquittal being based upon his trial and acquittal for selling intoxicating liquor to a minor. The court, in considering the plea of former acquittal, did so upon the theory that the second conviction was in violation of the Idaho statute, and said:

"Our attention has only been called to one statute which is in any way similar to the foregoing, and that is section 654, Kerr's California Penal Code, which is in the exact language of our statute, except that it has added thereto some reservations and exceptions. So far as we have been able to find, there is no decision of the California court that throws any light upon the inquiry which confronts us. It should also be remembered, upon the very threshold of our investigation of this case, that our statute differs materially and essentially from the provisions of sec. 13, art. 1 of the state Constitution, and the like provision of the federal Constitution which provides that 'no person shall be put twice in jeopardy for the same offense.' It should therefore be remembered, upon the very outset, that decisions from courts which discuss the foregoing constitutional provision with reference to being put 'twice in jeopardy' for the same offense are in no * * * sense applicable to the statute here under consideration. The constitutional provision deals with the subject of putting a defendant twice in jeopardy for the same offense. On the other hand, the statute (sec. 7230) above quoted, is not dealing with the 'same offense,' but the same 'act or omission.' In other words, the Legislature has said that where an act or omission to act is a violation of different statutes of this state and may be punished under several statutes, the state may elect as to the statute under which it will prosecute the party, but 'in no case can' such party 'be punished under more than one' statute. This statute appears to have been adopted from California by the 1872 Codes, and it was first introduced into the Idaho statutes in the 1887 Revised Statutes. The commission which proposed the Revised Statutes of 1887 of this territory was composed of some of the ablest lawyers in the territory, and they were undoubtedly familiar with the conflicting decisions and diversity of opinion among lawyers and judges as to just when a party can be legally said to have been 'once in jeopardy' under the constitutional provision and when he may be again tried for the commission of the same act which is a violation of another statute, and, in our opinion, it was for the purpose of setting this question at rest, so far as any conflict might arise in Idaho, that this statute was adopted. This was before the admission of the state and the adoption of the Constitution, and the Legislature accordingly directed its prohibition against twice prosecuting a man for the same 'act or omission,' although that act or omission might be a violation of several statutes and therefore constitutes several offenses."

However logical this decision may be as applied to the statutes of Idaho, its reasoning could not, for reasons which will hereafter appear, be made applicable to our own statute. For the present it is to be noted that the statutes of Idaho in force at the time of the decision of this case, provided no special method of procedure in the enforcement of the law relating to the sale of intoxicating liquors, as does our state law.

So far as the provision in question may be considered as a complement to those acts or omissions which were at the time of its adoption into the law made offenses under the law, and also to those which since its adoption have been made offenses and for which no exception or special procedure is provided, it may be understood as designed to prohibit the prosecution of a person under more than one statute for the same act or omission, although that act or omission may be a violation of several statutes, and therefore constitute several offenses. Whether it has reference to acts or omissions made unlawful by legislative enactment after its adoption into our law, in which enactment a different or a new method of procedure or punishment is provided, is one of the questions which is presented for consideration. If the provisions be considered as a part of the adjective law, and to relate to procedure. then, as will be pointed out in another part of this opinion, it is within the province of the Legislature to change the procedure in respect to the enforcement and punishment of any criminal act, so long as constitutional rights or guaranties are not invaded.

That the provision in question did not come into the California statute for the purpose of aiding in the construction of the term "twice in jeopardy" in the Constitution of that state is apparent from the fact that the Constitution of California was adopted in 1849, which contained a guaranty of immunity from a second prosecution for the same offense while this provision under consideration did not come into the law of that state until February, 1872. Section 654, Kerr's Cyc. Codes of California 1920. And for the same reason the provision in question cannot be looked to by the courts of this state in aid of construction of our constitutional guaranty of immunity from a second prosecution, in view of the fact that it came into...