State v. Pete

• Court: Louisiana Supreme Court
• Writing for the Court: LAND, J.
• Citation: State v. Pete, 153 La. 943, 96 So. 818 (La. 1923)
• Decision Date: 30 April 1923
• Docket Number: 25835
• Parties: STATE v. PETE

96 So. 818

153 La. 943

STATE v. PETE

No. 25835

Supreme Court of Louisiana

April 30, 1923

Rehearing Denied June 4, 1923

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Thos. F. Porter, Jr., Judge.

David Pete was convicted of manufacturing intoxicating liquors for beverage purposes, and he appeals.

Affirmed.

Thomas Arthur Edwards, of Lake Charles, for appellant.

A. V Coco, Atty. Gen., Griffin T. Hawkins, Jr., Dist. Atty., of Lake Charles, John J. Robira, Asst. Dist. Atty. (T. S. Walmsley, of New Orleans, of counsel), for the State.

OPINION

LAND, J.

The information filed in this case charges that the defendant did unlawfully manufacture, sell, and dispose of intoxicating liquor for beverage purposes.

Bill of Exceptions No. 1.

Defendant having demanded that the state should designate which charge it would prosecute, the district attorney elected to proceed with the trial on the charge of manufacturing intoxicating liquors for beverage purposes.

Defendant having requested in a motion for a bill of particulars information as to the kind and quantity of liquor and where manufactured, the state in its answer to said motion designated the premises of the defendant as the place of manufacture and the liquor manufactured as "whisky." Defendant then excepted to the bill of particulars furnished as insufficient, as the quantity, kind, and class of intoxicating liquors were not indicated in said bill. As the quantity of the intoxicating liquor manufactured is not an element of the offense of manufacturing intoxicating liquors for beverage purposes, and as the penalty denounced by the Hood Act upon conviction for such offense does not depend upon the quantity, we see no good reason why the quantity should be set out in a bill of particulars. Moreover, the return on the search warrant in this case shows that a 32-gallon barrel of mash was found on the premises of the defendant, and, as the manufacture of the whisky was not completed, the quantity of the liquor could not be ascertained at the stage the process of manufacture had reached at the time defendant was arrested.

The kind of liquor was designated as "whisky" in the bill of particulars. The liquor to be manufactured being "whisky," it was necessarily included in class 1 of section 8 of the Hood Act, which enumerates nine commonly known and well-recognized intoxicating liquors, which require no specific definition. State v. Coco, 152 La. 241, 92 So. 883.

Bill of Exceptions No. 2.

Upon the failure of the state to produce the still and its parts on the trial of the case, defendant moved that he be discharged from custody, for the reason that under the law the production of these articles was material and important for the purpose of showing whether or not they were used for the purpose of manufacturing liquor. Defendant contended that the production of the search warrant at the trial was also indispensable, as Act 39 of 1921 made it the duty of the sheriff to preserve said warrant, the still and its parts, and all liquors seized; and that, unless the search warrant shows on the affidavit of two responsible persons that the dwelling of defendant was being used as a cloak to violate the liquor laws, the possession of whisky would not be a violation of the law.

The search warrant was produced under the order of the court and showed upon its face that defendant's dwelling was being used as a cloak for the manufacture and sale of intoxicating liquors and that the warrant issued upon the oath of two reliable persons named in the affidavit, made as a basis for the issuance of said warrant.

The trial judge states in his per curiam to this bill that, on the request of counsel for defendant that the still, coil, and other articles claimed to be used in the manufacture of liquors in this case be produced, the court ordered this done; but the deputies who made the search and arrest in the case testified that, while they found the still, etc., and carried same and deposited it in the custody of the sheriff, they were unable at the time of the trial to identify the particular still from a considerable number of stills in the hands of the sheriff, all of which had the labels on them removed.

The court stated to counsel for defendant that, if his client admitted he had a still, and that same was taken by the officers, he was at liberty to pick the same out from among the other stills, if he could, and cared to do so. This offer was declined. The court therefore properly refused to discharge defendant.

The fact of the finding of the still and its parts and a quantity of mash in the possession of defendant and on his premises and the fact that these articles were deposited with the sheriff, but were incapable of identification by the state in part, was in evidence before the trial judge, as well as the search warrant and the return made thereon. The statute does not declare that the sole or exclusive proof in these cases shall consist of the production of the still and its parts, the liquor seized, and the search warrant and return. When these articles are in custody and can be identified, and their production is...