State v. Peters
| Decision Date | 05 December 1924 |
| Docket Number | 5546. |
| Citation | 231 P. 392,72 Mont. 12 |
| Parties | STATE v. PETERS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; Charles A. Rose, Judge.
William Peters and Ed. Adams were convicted of maintaining a common nuisance, and they appeal. Reversed and remanded.
J. P Donnelly, of Havre, for appellants.
L. A Foot, Atty. Gen., and C. N. Davidson, Asst. Atty. Gen., for the State.
Judgment was pronounced against William Peters and Ed. Adams upon the verdict of a jury finding them guilty of maintaining a common nuisance. They moved for a new trial, which was denied. They have appealed from the judgment and from the order denying them a new trial.
1. The information charged that these men, between certain dates did knowingly, willfully, unlawfully, and wrongfully conduct and maintain a place where intoxicating liquors were then and there sold, kept, and bartered. The information describes a building, together with its additions and outbuildings.
The statute, section 11066, R. C. 1921, declares in part that any room, house, building, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered, "in violation of this act," is a common nuisance, "and any person who maintains such a common nuisance shall be guilty of a misdemeanor."
There was direct evidence tending to show that both defendants during the times and at the place mentioned in the information had sold intoxicating liquors to divers persons. In addition, against objection, the state was permitted to show that the general reputation of the building during the period covered by the information was that it was a place where intoxicating liquors were kept, sold, and bartered. This was error. The question at issue was whether the defendants had committed acts which under the statute created a nuisance. Neither the reputation of the defendants nor of the place is a constituent part of the offense charged. The offense may not be proved by hearsay evidence, and evidence as to general reputation is, of course, pure hearsay.
In a prosecution against a person for maintaining a liquor nuisance, and in the absence of a statute permitting evidence of the general reputation of the place where the nuisance is alleged to have existed, such evidence is inadmissible. Indeed, this is the well-nigh universal rule with respect to common nuisances in general, although there are some exceptions. Wharton's Crim. Ev. (10th Ed.) § 255; Greenleaf on Evidence (Lewis' Ed.) § 186; 7 Ency. Ev. 742; Elliott on Evidence, § 3063; 33 C.J. 755; State v. Foley, 45 N.H. 466; Overstreet v. State, 3 How. 328; Cook v. State, 81 Miss. 146, 32 So. 312; State v. Fleming, 86 Iowa, 294, 53 N.W. 234; Commonwealth v. Eagan, 151 Mass. 45, 23 N.E. 494; Hookman v. State, 59 Tex. Cr. R. 183, 127 S.W. 825; Commonwealth v. Hopkins, 2 Dana (Ky.) 418; Cook v. Commonwealth, 159 Ky 839, 169 S.W. 553; State v. Brooks, 74 Kan. 175, 85 P. 1013; People v. Johnson, 63 Cal.App. 178, 218 P. 449; State v. Springs, 184 N.C. 768, 114 S.E. 851. In the last case cited the court overruled State v. McNeill, 182 N.C. 855, 109 S.E. 84, a liquor case, in which it had held testimony concerning the general character of the defendant's place admissible. In State v. Springs witnesses were permitted to testify that Springs' place had a bad reputation for whisky selling. The court, speaking through Hoke, J., said:
"With certain recognized exceptions, applicable chiefly in civil causes, and unless expressly made so by statute, hearsay evidence is not competent in the trial of issues determinative of substantive rights, a position particularly insistent where such issues involve the life or liberties of the litigant."
Mr. Wigmore says: "The offense of being a common thief, a common gambler, or other common offender, or of keeping a common nuisance, e. g., a place for illegal sale of liquor or drugs, is one which by some courts, sometimes under statute, has been regarded as provable by reputation"; and then he adds this significant sentence, "but perhaps the notion here enters that reputation is a part of the issue." Wigmore on Evidence (2d Ed.) § 1620 (3).
The Supreme Court of Oklahoma, in Sibenaler v. State, 16 Okl. Cr. 576, 185 P. 448, a case somewhat similar to this, held evidence of the general reputation of the place where liquor was sold admissible, following Ostendorf v. State, 8 Okl. Cr. 369, 128 P. 143, which followed Carroll v. State, 4 Okl. Cr. 246, 111 P. 1022, and Titsworth v. State, 2 Okl. Cr. 282, 101 P. 293; rejected similar testimony in Mitchell v. State, 9 Okl. Cr. 172, 130 P. 1175, where the defendant was prosecuted under a statute which condemned as a vagrant "any person who is a professional gambler"; extended the doctrine in Ward v. State, 15 Okl. Cr. 150, 175 P. 557, where the defendant was prosecuted for having unlawful possession of intoxicating liquors.
Without attempting to analyze these Oklahoma cases, we deem it sufficient to say that all except Mitchell v. State are not only contrary to the overwhelming weight of authority but they establish a rule of evidence which, according to the general voice, it is the province of the Legislature to establish if the people desire to relax the well-known rule which excludes this character of testimony.
In a number of states statutes have been passed authorizing the reception in evidence of general reputation in common offender and common nuisance cases (Wigmore on Evidence, § 1620 [3], and note), certainly persuasive that evidence of the character we are discussing was not deemed admissible in those states in the absence of statute.
A well-established exception to the rule permits the state in the prosecution of one charged with keeping a house of ill fame to introduce as corroborative evidence the general reputation of the house itself. The reasons for the exception are well presented in State v. Hendricks, 15 Mont. 194, 39 P. 93, 48 Am. St. Rep. 666. And some courts apply the doctrine to "disorderly houses," but here the authorities are in sharp conflict; the cases in many instances turning upon the language of the applicable statutes. See Wharton's Criminal Evidence (10th Ed.) § 261, and cases cited; Elliott on Evidence, § 3063, and cases cited.
In abatement cases evidence of the general reputation of the place sought to be abated is admissible, probably in the absence of statute. State v. Mercier (Mont.) 225 P. 802. But here it may be noted that section 11127, R. C. 1921, which is a part of chapter 30, relating to nuisances, provides that in an action to abate a nuisance "evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of said nuisance." The action contemplated is of an equitable nature, but, if it should be thought desirable by the legislative assembly, that body might with propriety extend the operation of the statute so as to permit the reception of evidence of that kind as corroborative in nuisance cases of a criminal character.
We cannot assent to the proposition that, even if the admission of this evidence was error, it was not prejudicial. The defendants, while admitting they had served drinks to patrons of the place, attempted to maintain that all they sold was "soft drinks"; they denied that they had ever sold intoxicating liquor of any kind there. The weight of their testimony was for the jury's determination. We cannot say that ...
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