State v. Polich

• Citation: 226 P. 519,70 Mont. 523
• Decision Date: 26 May 1924
• Docket Number: 5467.
• Parties: STATE v. POLICH.
• Court: United States State Supreme Court of Montana

226 P. 519

70 Mont. 523

STATE v. POLICH.

No. 5467.

Supreme Court of Montana

May 26, 1924

Appeal from District Court, Musselshell County; Geo. A. Horkan Judge.

Matt Polich was convicted of unlawful sale and possession of intoxicating liquor, and he appeals. Affirmed.

J. H Duffy, of Anaconda, and W. W. Barton and W. A. Pennington both of Roundup, for appellant.

W. D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

HOLLOWAY J.

An information was filed in the district court of Musselshell county containing two counts, in the first of which the defendant, Matt Polich, was charged with the unlawful sale of intoxicating liquor, and in the second with the unlawful possession of intoxicating liquor. To each of these accusations he entered a plea of not guilty, and thereafter a trial was had, a verdict returned, and a judgment of conviction entered. The defendant has appealed from the judgment and from an order denying his motion for a new trial.

It is contended that the information does not state a public offense in either count. In the first count it is charged that "one Matt Polich, late of the county of Musselshell, state of Montana, on the 4th day of September, A. D. 19122," unlawfully sold intoxicating liquor, etc. The date mentioned, of course, is impossible; but the question for determination is not whether the pleading is a model, but whether it is so defective that it will not sustain a judgment. There was not any motion to set it aside; there was not any demurrer interposed nor motion in arrest of judgment offered. The cause was tried upon its merits, and evidence was admitted without objection, which, if true, established the fact that the sale was made on September 4, 1922. Also, without objection, the court by instruction 18 told the jury:

"If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Matt Polich, at the time and place alleged in the information on file herein, to wit, September 4, 1922, did sell certain intoxicating liquors as alleged in the information on file herein, you shall find a verdict of guilty on the first count."

It is fairly apparent that in the preparation of count 1 the county attorney employed a printed form of information in use prior to 1920, in which upon the date line appeared the figures "191--," and that through inadvertence the figures "22" were added without striking out the last figure "1." If time were an essential ingredient of the crime of selling intoxicating liquor in violation of law, the first count would not state a public offense; but it is not, and section 11848, Revised Codes, provides:

"The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before finding or filing thereof, except where the time is a material ingredient in the offense."

While the mistake in the pleading may be inexcusable, this case does not stand alone. The same error appeared and the same question was presented in White v. State, 23 Wyo. 130, 147 P. 171, 148 P. 342, where through inadvertence the offense was alleged to have been committed on August 12, 19013, and in Boos v. State, 181 Ind. 562, 105 N.E. 117, where it was charged that the offense was committed on or about December 14, 19012. In each instance it was held that the defect in the pleading was not fatal, and we reach the same conclusion upon the record, in view of the provisions of section 11843, Revised Codes:

"11843. The indictment or information must contain:

1. The title of the action, specifying the name of the court in which the same is filed, and the names of the parties;

2. A statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended."

When it is recalled that the evidence of a sale made on September 4, 1922, was admitted without objection, that the defendant was prepared to meet the charge upon the assumption that that was the correct date, and that he introduced evidence tending to establish an alibi, and did not offer any objection to the instruction which told the jury that the first count charged that the sale was made on September 4, 1922, it is impossible that the clerical misprision caused prejudice to the defendant in any substantial right. Sections 11853 and 11874, Revised Codes, provide:

"11853. No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits."

"11874. Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."

The objection to the second count is that--

"It does not allege that the act of illegally possessing liquor was committed in Musselshell county."

The charging part of that count follows:

"One Matt Polich, late of the county of Musselshell, state of Montana, on or about the 4th day of September, 1922, at the county of Musselshell and state of Montana, committed the crime of possessing intoxicating liquor, ardent spirits, in that he, the said Matt Polich, then and there being then and there did willfully, wrongfully and unlawfully possess and keep in his possession certain intoxicating liquor," etc.

The word "then" refers to the date, September 4, 1922, and the word "there" to Musselshell county. The pleading follows the form prescribed by section 11844, and is sufficient. State v. Stickney, 29 Mont. 523, 75 P. 201. Section 11841 provides:

"All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code."

It is next contended that the verdict is insufficient to sustain a judgment of any character; that it does not find the defendant guilty of any offense, and at most only finds him guilty of a count. The verdict reads as follows:

"We, the jury duly impaneled, find the defendant, Matt Polich, guilty of count No. 1 and leave the fixing of his punishment to the court."

"We, the jury, duly impaneled, find the defendant, Matt Polich, guilty of count No. 2, and leave the fixing of his punishment to the court."

A verdict is not subject to the technical rules which govern pleadings. The object sought in construing a verdict is to ascertain the intention of the jury, and to that end reference may be made to the pleadings, the evidence, and the instructions of the court. Consolidated Gold & Sapphire Min. Co. v. Struthers, 41 Mont. 565, 111 P. 152; Tripp v. Silver Dyke Min. Co., 69 Mont. ___, 224 P. 272; 16 C.J. 1113, § 2606. In 16 C.J. 1101, it is said:

"But a strict adherence to the statutory form of verdict usually is not required; and although the verdict is informal or contains inaccuracies in the language used, if the intention of the jury to return a verdict of guilty or not

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