State v. Pinkston, 1275

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: TIDBALL, District Judge.
• Citation: 240 P. 219,33 Wyo. 428
• Parties: STATE v. PINKSTON [*]
• Docket Number: 1275
• Decision Date: 27 October 1925

240 P. 219

33 Wyo. 428

STATE
v.
PINKSTON ^[*]

No. 1275

Supreme Court of Wyoming

October 27, 1925

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

Joe Pinkston was convicted of selling, and having for sale intoxicating liquor, and he appeals.

Affirmed.

Vincent Mulvaney and Edwin Barrett for appellant.

The information does not charge the commission of an offense prohibited by law; Laws of 1921, page 157; People vs. Peisez, 226 Ill.App. 363, 31 C. J. 694, 703-704. There was no evidence of storage of liquor on the premises. The court erred in receiving evidence of other alleged offenses; Underhill (3rd ed.) 187; 33 C. J. 749; questions by the prosecution propounded to defendant as to whether he was engaged in running a house of prostitution were prejudicial; 28 R. C. L. 610; Ex parte Boscowitz, 5 Am. S. R. 384. The court erred in denying appellant's motion to permit the jury to inspect the premises; 7535 C. S. There was no evidence that defendant kept and sold intoxicating liquor. The court erred in denying defendant's motion for a directed verdict, and in denying his motion and arrest of judgment. The sentence of the court is unusual and excessive and should be modified; State vs. Parker, 100 So. 260.

David J. Howell, Attorney General and John C. Pickett, Asst. Attorney General for defendants.

Defendant's motion in arrest of judgment was not made in time, 7588 C. S. The alleged defect in the information was waived by plea of not guilty; 7483, 7486 and 7487 C. S. McGinnis vs. State, 16 Wyo. 72; the motion being out of time, defendant waived any benefit thereunder; 16 C. J. 1263; Patton vs. State (Ind.) 135 N.E. 759; Tracy vs. State (Okla.) 216 P. 941; but the information was sufficient; 13 C. J. 708; authorities cited by appellant to support his contention, that the concluding words of the information "Contrary to the form of statutes in such cases provided" constitute a defect in the charge, are not applicable to the present case. No substantial rights of defendant were thereby affected; May vs. U. S. 199 F. 42; State vs. Johnson (N. D.) 118 N.W. 230; People vs. Ermons (Cal.) 110 P. 151; the clause has the same meaning as the words prohibited and unlawful; Pickins vs. Timber Co. (W. Va.) 41 S.E. 400; Stoltz vs. People (Colo.) 148 P. 865; State vs. Decker (Iowa) 191 N.W. 359; Bowes vs. State, (Okla.) 127 P. 883; no exception was preserved to objections made to questions propounded to witness Barrett, as to defendant's occupation and the point cannot be reviewed; Bader vs. Mills, 28 Wyo. 191; Ritchey vs. State, 28 Wyo. 119; State vs. Lowry, 29 Wyo. 267; prosecution may always go into matters referred to in cross-examination; 16 C. J. 884; 28 R. C. L. 598; cross-examination may go into collateral matters tending to discredit the witness; 28 R. C. L. 609; Evans vs. Connor, (Mass.) 75 A. S. R. 316; and in the absence of an abuse of discretion the courts rulings are not reviewable; Carter vs. State (Nebr.) 154 N.W. 252; Byers vs. Terr. (Okla.) 100 P. 261; Pullen vs. State, (Tex.) 156 S.W. 359; evidence of different sales are admissible upon a charge of maintaining a nuisance; State vs. Jordan (N. Dak.) 155 N.W. 59; State vs. Copleman (Kans.) 205 P. 360; Paige vs. U. S. 278 F. 41; Baich vs. U. S. 276 F. 290; defendant made no objection to re-opening the prosecution after close of its evidence to put the state's Exhibit "A" in evidence; moreover it was within the discretionary power of the court to so re-open; 16 C. J. 71; State vs. Bales (Mo.) 181 S.W. 801; State vs. Jones, (Wash.) 142 P. 35; People vs. Ferrone (N. Y.) 98 N.E. 81; McGrew vs. U. S. 281 F. 809; it is within the discretion of the court to permit the jury to view the premises in a criminal case; 7535 C. S. Young vs. Com. (Ky.) 133 S.W. 791; State vs. Bemas (Wash.) 195 P. 1001; refusal to permit the jury to view the premises is not reviewable; there was evidence to show that defendant kept liquor for sale. The sentence imposed by the court was within the statutory limits and should be upheld; Bishop on Criminal Law 9th ed. Vol. p. 697; State vs. Duff (Iowa) 121 N.W. 829; Jenkins vs. State, 22 Wyo. 34; Russell vs. State, 19 Wyo. 272; In re McDonald, 4 Wyo. 150; Ex Parte Pollizzattoo (Calif.) 205 P. 676.

TIDBALL, District Judge. POTTER, Ch.J., and BLUME, J., concur.

OPINION

[33 Wyo. 431] TIDBALL, District Judge.

In this case, defendant and appellant was informed against in the District Court, the information containing four counts, the fourth count being for conducting a nuisance by selling intoxicating liquor in a certain building, and the second and third counts being as follows:

[33 Wyo. 432] SECOND COUNT

And comes now E. H. Foster, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that Shorty Black, whose true name is unknown, late of the County aforesaid, on or about the 22nd day of September, A. D. 1923, in the County of Natrona, in the State of Wyoming, did then and there wilfully and unlawfully keep for sale intoxicating liquor, to-wit, whisky, containing one-half of one per centum of alcohol by volume and fit for use for beverage purposes, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Wyoming.

THIRD COUNT

And comes now E. H. Foster, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that Shorty Black, whose true name is unknown, late of the County aforesaid, on or about the 22nd day of September, A. D. 1923, in the County of Natrona, in the State of Wyoming, did then and there wilfully and unlawfully sell intoxicating liquor, to-wit, whisky, containing one-half of one per centum of alcohol by volume and fit for beverage purposes, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Wyoming.

He was found guilty on the second and third counts and was sentenced to serve sixty days in jail and to pay a fine of $ 300 on each of said counts.

In his specifications of error--the case being here on appeal--he sets forth some thirteen errors, but the record shows that no exceptions were preserved to most of the alleged [240 P. 220] erroneous rulings, and these will not be considered by this court.

[33 Wyo. 433] The first two specifications of error are that the second and third counts of the information do not charge the commission of a crime under the laws of Wyoming, the appellant contending that under Chapter 117,...