State v. Petrogalli

Decision Date28 July 1921
Citation34 Idaho 232,200 P. 119
PartiesSTATE, Respondent, v. MIKE PETROGALLI, Appellant
CourtIdaho Supreme Court

INTOXICATING LIQUOR - ERRONEOUS STATEMENT BY COURT - NONPREJUDICIAL ERROR-INFORMATION-VARIANCE-INSTRUCTIONS.

1. Erroneous admission of evidence and an accompanying erroneous statement by the court are not reversible error, when the verdict of guilty is sustained by other evidence, clear and un- contradicted, so that the jury could not have reached any other conclusion.

2. An erroneous statement of the law, made by the court in ruling on evidence, is cured by a correct statement of it in the instructions.

3. Where the information alleges the possession of "intoxicating liquor, to wit, a liquid commonly called 'Dago Red,' " proof of the possession of intoxicating liquor is sufficient to sustain a conviction and a material variance does not arise from the fact that the proof does not show it was "Dago Red."

4. Failure of the court to give a requested instruction, which states the law correctly, is not error when the matter is fairly covered by the instructions given.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. E. C. Steele, Judge.

From a conviction of unlawful possession of intoxicating liquor defendant appeals. Affirmed.

Affirmed.

Morgan & Boom, for Appellant.

It was incumbent upon the state to prove that the liquid offered in evidence was intoxicating or fermented liquor at the date it was alleged to have been found on the premises of the defendant. (Bandy v. State, 13 Okla. Cr. 468, 165 P 616.)

The information having named specifically Dago Red as the kind of intoxicating liquor the defendant had in his possession, it was incumbent on the state to prove that said liquid was Dago Red, and that Dago Red is an intoxicating liquor, and failure to make such proof was a fatal variance. (Bishop's New Criminal Procedure, secs. 485, 486, 488; Smith v. State, 7 Okla. Cr. 4, 120 P. 1031; State v. Hesner, 55 Iowa 494, 8 N.W. 329; Yoather v. State, 5 Okla. Cr. 46, 113 P. 234; Williams v. State, 35 Ark. 430; State v. LiFieri, 6 Boyce (Del.), 597, 102 A. 77; 1 Chamberlayne on Modern Law of Evidence, sec. 713; Daniel v. State, 149 Ala. 44, 43 So. 22; State v. May, 52 Kan. 53, 34 P. 407; State v. McCaskey, 97 Wash. 401, 166 P. 1163.)

Roy L. Black, Attorney General, and Clarence S. Hill, Assistant, for Respondent.

When requested instructions are refused and substantially covered by instructions given, no error can be predicated thereon. (State v. Nolan, 31 Idaho 71, 169 P. 295.)

Where the information charges the possession of intoxicating liquor, commonly known as "Dago Red," proof of possession of fermented liquor is sufficient, the specific name of the liquor being surplusage and immaterial. (Bullard v. United States, 245 F. 837, 158 C. C. A. 177; United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819; Coffey v. United States, 116 U.S. 427, 6 S.Ct. 432, 29 L.Ed. 681; City of Florence v. Berry, 61 S.C. 237, 39 S.E. 389.)

Technical errors not affecting the substantial rights of the appellant must be disregarded on appeal. (State v. Fondren, 24 Idaho 663, 135 P. 265; State v. Moon, 20 Idaho 202, Ann. Cas. 1913A, 724, 117 P. 757; State v. Gruber, 19 Idaho 692, 115 P. 1; State v. Marren, 17 Idaho 766, 107 P. 993; State v. Nolan, 31 Idaho 71, 169 P. 295.)

The essence of the crime being the possession of "intoxicating liquor," no specific kind of liquor need be alleged or proven. (State v. Busick, 90 Ore. 466, 177 P. 64; State v. Sullivan, 97 Wash. 639, 166 P. 1123; Seibert v. State, 121 Ark. 258, 180 S.W. 990; Callahan v. State, 2 Ind.App. 417, 28 N.E. 717.)

MCCARTHY, J. Rice, C. J., and Dunn, J., concur. Budge and Lee, JJ., dissent.

OPINION

MCCARTHY, J.

On the evening of January 20, 1919, under authority of a search-warrant, the sheriff of Latah county and his deputy searched the small store and bakery of appellant at Onaway, Idaho. In the bakery-room, back of the store, they found a barrel half full of a mixture of liquid and raisins. The wife of appellant coming out of the cellar entrance, they went in the cellar, where they found the board floor wet and a barrel, large carboy and a couple of bottles, tipped over on their sides and dripping with some liquid. There were also a couple of empty jugs that had contained liquid. The barrel was wet to within a couple of inches of the top. Exhibits of the liquid obtained from this barrel, the bottles, and the barrel containing the liquid and raisins were taken to the chemist of the Idaho Experiment Station of the University of Idaho and by him examined the next day. He found that one exhibit contained no alcohol, one 33%, one 1.06%, two 5.16%, and one 5.24% of alcohol, and so testified.

A sample of the liquid containing the raisins was examined May 26th, and showed 18.05% of alcohol. Testimony to this effect, by the chemist, was admitted over appellant's objection, in which connection the court made the statement: "It is all right; there is a presumption that the conditions existed the same as before; you can testify as to what you found on that exhibit."

The admission of testimony in regard to the analysis of May 26th and the above statement of the court were clearly error likewise the admission of the exhibit with relation to which the testimony was admitted was error. There was other evidence, competent, clear and uncontradicted, that appellant was in possession of fermented liquor contained in other exhibits which showed, respectively, 5.16%, 5.24% and 5.16% of alcohol upon analysis made on the following day. The liquor contained in these exhibits was taken at the same time and under the same search-warrant as that above referred to. Not only was there no contradiction of the state's evidence with reference to the exhibits containing alcohol as above set forth, but the possession of these exhibits was practically admitted by appellant in his testimony. C. S., sec. 2605, provides, and the court correctly instructed the jury, that all fermented liquors are intoxicating...

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24 cases
  • State v. Jurko
    • United States
    • Idaho Supreme Court
    • March 23, 1926
    ...Cosler, 39 Idaho 519, 228 P. 277; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Petrogalli, 34 Idaho 232, 200 P. 119; State v. Curtis, 29 Idaho 724, 161 P. all of the instructions together given upon the point complained of, we are of the op......
  • State v. Moore
    • United States
    • Idaho Supreme Court
    • December 30, 1922
    ... ... Peterson, supra; Commonwealth v. Vigliotti, ... supra; Merryweather v. State, supra; Woods v. City of ... Seattle (D. C.), 270 F. 316; Powell v. State, ... 18 Ala. App. 101, 90 So. 138.) ... The ... information in this case is sufficient. ( State v ... Petrogalli, 34 Idaho 232, 200 P. 119.) ... DUNN, ... J., WILLIAM A. LEE, J. Rice, C. J., Budge and McCarthy, JJ., ... concur, Lee, J., concurs in the result, Dunn and Wm. E. Lee, ... JJ., concurring in the conclusion ... OPINION ... [36 ... Idaho 569] DUNN, J ... ...
  • In re Application of Speer
    • United States
    • Idaho Supreme Court
    • June 17, 1933
    ...the state. Eleven years after the Lockman case was decided this court again approved the same construction in the case of State v. Petrogalli, 34 Idaho 232, 200 P. 119, except for the present case this construction has not been questioned during the intervening years. A construction judicia......
  • State v. Sing
    • United States
    • Idaho Supreme Court
    • July 1, 1922
    ... ... Cleveland, 49 Cal. 578; People v. Armstrong, ... 114 Cal. 570, 46 P. 611; State v. Pettit, 33 Idaho ... 326, 193 P. 1015; 14 R. C. L., sec. 76, p. 820; State v ... Curtis, 29 Idaho 724, 727, 161 P. 578; State v ... Nolan, 31 Idaho 71, 169 P. 295; State v ... Petrogalli, 34 Idaho 232, 200 P. 119; Reed v ... State, 102 Ark. 525, 145 S.W. 206; Leech v. State, 63 ... Tex. Cr. 339, 139 S.W. 1147.) ... It is ... not error to instruct that malice aforethought means an act ... is done with malice and premeditation. (Michie, Homicide, ... sec. 11; ... ...
  • Request a trial to view additional results

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