State v. Navone

• Decision Date: 21 December 1934
• Docket Number: 24468.
• Citation: 180 Wash. 121,39 P.2d 384
• Parties: STATE v. NAVONE.
• Court: Washington Supreme Court

39 P.2d 384

180 Wash. 121

STATE v. NAVONE.

No. 24468.

Supreme Court of Washington

December 21, 1934

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Ed Navone was convicted of selling intoxicating liquor to a minor, and he appeals.

Affirmed.

John J. Kennett and Kenneth Durham, both of Seattle, for appellant.

Robert M. Burgunder, and William J. Wilkins, both of Seattle, for the State.

BEALS Chief Justice.

DefendantEd Navone, was arrested pursuant to an information which charged him with the crime of selling intoxicating liquor to Allen Birnie, a minor of the age of 17 years.Defendant moved against this information and also demurred thereto.At the hearing, over defendant's objection, the state was permitted to amend the information by adding thereto, after the description of the offense as originally charged, the words, 'and one Robert Handley a minor of the age of nineteen years,' whereupon the information was sustained.Thereafter a second information was filed, containing two counts, the first charging the sale of intoxicating liquor to Allen Birnie, 'a minor of the age of eighteen years,' and the second charging a similar sale to Robert Handley'a minor of the age of nineteen years.'No order was entered formally disposing of the first information filed.Defendant thereupon moved that the second information be quashed because of the pendency of the first information, or in the alternative that proceedings on the second information be stayed until the first information had been disposed of.This motion was denied, whereupon defendant moved that the state be required to elect upon which of the two informations it would proceed, and, upon denial of this motion, demurred to the original information and to both counts of the second information, his demurrers being overruled.

Defendant was put upon his trial upon the second information, and at the close of the state's case the court directed a verdict of not guilty as to count 1.The case was submitted upon count 2, the jury finding defendant guilty, including in their verdict a recommendation that clemency be extended.From judgment and sentence pursuant to this verdict, defendant appeals, assigning error upon the overruling of the various demurrers which he had interposed to the two informations, upon the refusal of the court to quash the second information, and upon the denial of his motion to require the state to elect upon which information it would proceed.

Error is also assigned upon the overruling of various motions for orders declaring a mistrial made by appellant based upon alleged misconduct of the prosecuting attorney, upon the denial by the trial court of appellant's motions for a new trial and for arrest of judgment, upon the giving of certain instructions, and upon the refusal to give others requested by appellant, and, finally, upon the entry of judgment and the imposition of sentence pursuant thereto.

We find no merit in appellant's assignments of error based upon the filing of the second information and appellant's trial thereon.The second information was filed in the same proceeding as the first and manifestly superseded the same.If the state should attempt to bring appellant to trial upon the first information, an appropriate remedy would doubtless be available to him.Neither do we find error in connection with the refusal of the trial court to require the state to elect as to upon which information it would proceed.Appellant was placed upon his trial upon the second information.He does not argue that he was surprised by this action, and we find no basis for his contention that he was prejudiced by the ruling of the trial court in connection with the matters above referred to.

Appellant was tried pursuant to Rem.Rev. Stat. § 7328-1, which provides, inter alia, that 'Every person who shall sell any intoxicating liquor to any minor shall be guilty of a felony.'The statute does not define the word 'minor,' and appellant argues that this word as used in the act should be held to refer to one under the age of 18 years, instead of to persons under the age of 21 years.Appellant was convicted of the offense of selling liquor to Robert Handley, who was 19 years of age.

If appellant's position is sound, count 2 of the information upon which appellant was tried and under which he was found guilty stated no offense, and his demurrer thereto should have been sustained.

Rem.Rev. Stat. § 10548, provides that 'All persons shall be deemed and taken to be of full age for all purposes at the age of twenty-one years and upwards.'

Appellant contends that, as there is no statute declaring that a person shall not be of full age until he or she reaches the age of 21 years, and as there are other statutes which declare that for certain purposes defined therein a minor shall be deemed to be a person under 18 years of age, it must be held that the statute under which he was tried applies only to sales of intoxicating liquor to persons less than 18 years old.

Appellant argues that, as criminal statutes should be strictly construed, the courts must adopt in connection with the word 'minor,' as employed in the criminal statute above quoted, the lowest age at which, under any one of our statutes, a person is said to be a minor.In this connection appellant calls attention to the section of the Workmen's Compensation Act defining a minor to be 'a person of either sex under the age of eighteen (18) years,' Rem.Rev. Stat. § 7627, and to the section of the statute providing for punishment of juvenile delinquency, which, according to its terms, applies to children under 18 years of age, Rem.Rev. Stat. § 1987-1.Other sections of the Criminal Code are by their terms made applicable to persons under the age of 18 years.

We find no merit in appellant's contention.Our statute above quoted follows the common law and for all general purposes fixes the age of majority at 21 years.A minor is one who has not reached this age.The special statutes relied upon by appellant are by their terms limited in their application to minors under 18 years of age, thereby simply creating a class within a class.

By the Criminal Code of 1909, prior statutes making the sale of intoxicating liquor to minors an offense were repealed, and the following section, now Rem.Rev. Stat. § 2445, adopted:

'Every person who---- * * *

'(4) Shall sell or give, or permit to be sold or given to any person under the age of twenty-one years any intoxicating liquor, cigar, cigarette, cigarette paper or wrapper, or tobacco in any form; * * *

'Shall be guilty of a gross misdemeanor.'

We hold that, under our law against the sale of intoxicating liquor to minors, the statute is violated by a sale to a person under 21 years of age.

A résumé of the evidence is necessary to a discussion of appellant's other assignments of error.It appears from testimony introduced by the state that Allen Birnie, Robert Handley, and Roy Curtain met at the Birnie home at about 8 o'clock on the evening of April 2, 1932.Curtain was over 21 years of age; the other boys being younger.The three intended to go to a dance on the evening in question and as a prelude desired to drink some liquor.Young Handley contributed $1, the other two boys contributing $1 between them, whereupon the three went to the house occupied by appellant and with the $2 bought from him a quart of moonshine.This liquor they took back to the Birnie home, where they drank it, after which the three went to a dance.Curtain left the party about midnight, and about 3 o'clock in the morning Allen Birnie was found unconscious in a wrecked and stolen automobile some distance from the dance hall; three other persons having been killed in the collision in which Birnie was injured.

At appellant's trial, Birnie, testifying as a witness on behalf of the prosecution, stated that his mind was a complete blank as to everything that occurred after he reached the dance.Robert Handley testified that he last saw Birnie shortly after midnight, when he(Handley) left the dance and went home; Handley maintaining throughout the trial that he knew nothing concerning the taking of the automobile or the collision above referred to.

Appellant denied that he sold any liquor whatsoever to the three boys or that any one of them had been at his house on the night of April 2 as testified to by them, and other occupants of appellant's house corroborated his testimony.Appellant testified that he had never seen any of the boys until he saw them at the trial.

Appellant argues that Curtain's testimony was of such nature that the jury could not have believed it, that Birnie's testimony was discredited because he professed to know nothing except as to the sale of the moonshine by appellant to which Birnie testified, and that the jury believed the testimony of the witness Robert Handley and based their conviction of appellant upon such testimony.

The record affords little basis for this argument.It is impossible to know what testimony impressed the jury--probably the jurors themselves would not have been in accord as to the degrees of credit to be given to the different witnesses.Such speculation is idle.

It clearly appears from the record herein that, in stating that he was not present in the automobile with Birnie at the time of the collision, Robert Handley was not telling the truth.We assume for the purposes of this case that Handley was present with Birnie at the time of the collision and that he at appellant's trial swore falsely when he stated that he was not.In connection with his motion for a new trialappellant submitted affidavits and made other showing practically demonstrating that Handley had perjured himself...