State v. Redmond
| Decision Date | 13 May 1925 |
| Docket Number | 5676. |
| Citation | 237 P. 486,73 Mont. 376 |
| Parties | STATE v. REDMOND. |
| Court | Montana Supreme Court |
Rehearing Denied May 26, 1925.
Appeal from District Court, Madison County; Joseph C. Smith, Judge.
Ed Redmond was convicted of transporting intoxicating liquor and appeals. Affirmed.
Canning & Geagan, of Butte, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
By information, the defendant, Ed Redmond, was charged with unlawfully transporting intoxicating liquors. Upon his plea of not guilty, he was tried and found guilty, by verdict of a jury, and by the court sentenced to pay a fine of $300 and to 60 days' imprisonment in the county jail. Judgment was entered accordingly. The appeal is from the judgment and from an order denying the defendant a new trial.
The defendant specifies and argues eighteen alleged errors as reason for a reversal of the judgment, but three of which are necessary to be considered in disposing of the appeal. These will be set forth and considered in their order.
1. It is contended that the information does not state a public offense. The charging portion of the information reads:
"That said Ed Redmond, at the county of Madison, * * * did willfully, wrongfully, and unlawfully transport certain intoxicating liquors," etc.
It is argued that it is fatally defective for failure to state that the crime was committed at a place within the jurisdiction of the court, and that the nature of the offense is such as to require an allegation that it was committed "in," "within," "through," or "across" Madison county, and that "at" or "near" is insufficient. No objection was raised to the sufficiency of the language employed in the charge in the trial court by demurrer or otherwise. The information uses the language prescribed by the statute (section 11844, R. C. 1921) in the model therein set forth. It is only necessary that the charge shall state jurisdictional facts and the offense in such ordinary and concise language as to enable a person of ordinary understanding to know what is intended. Id. § 11843; State v. Beesskove, 34 Mont. 41, 85 P. 376. It is enough if therefrom it can be ascertained that the offense was committed at some place within the jurisdiction of the court. Id. § 11852. Tested by these rules, the information before us is sufficient. State v. Stickney, 29 Mont. 523, 75 P 201. Had the defendant desired additional details as to the act of transportation charged, he should have applied to the court for a bill of particulars in advance of the trial. State v. Fredericks, 65 Mont. 25, 212 P. 495; State v. Griebel, 65 Mont. 390, 211 P. 331; State v. Jenkins, 66 Mont. 359, 213 P. 590; State v. Dow (Mont.) 229 P. 402.
2. Is the evidence sufficient to support the verdict? At the conclusion of the state's case the defendant moved the court to direct a verdict of not guilty, because of the insufficiency of the evidence, and because of a variance between the charge and the testimony. The motion was denied.
It appears that on March 1, 1924, one E. R. Small, a state prohibition enforcement officer, was visiting the town of Sheridan, Madison county, in the course of his employment. He was a total stranger in that community, and there introduced himself as "Mr. Ross," and was known by that name. In the course of his operations in Sheridan, in the evening of that day he met Milton J. Murray, who introduced him to the defendant, Redmond, in front of what is known as the "Jasper Cox Pool Hall," at about 9:30 o'clock. It was then after the shadows of night had fallen. Small asked the defendant if he could get a bottle, and the former replied in the affirmative. Redmond proceeded around the corner of the building, followed by Small; the latter requesting Murray to wait. Redmond told Small not to come further and to send Murray back. Small followed Redmond around two corners of the building and waited at the far corner while Redmond went into an adjacent toilet to the rear of the building and procured a bottle of whisky. The toilet was situated a distance of 20 or 25 feet from where Small was left standing. Small testified in substance that the defendant remained in the toilet just a minute and came right out. After coming out of the toilet, he came back to the corner of the building where Small was standing, and together they proceeded towards the street, a distance of 20 or 25 feet. Small asked the price, and, after some preliminary discussion with regard thereto as they walked along together, Small paid the defendant the amount he asked, $2.50, and the bottle was then delivered by Redmond to Small. The entire transaction did not consume more than 5 or 6 minutes. After making the purchase, both Small and Murray sampled the contents of the bottle.
Did the proof establish such a "transportation" of liquor as is contemplated by the statute? In construing the language employed, we must pursue the intention of the Legislature so far as possible. Section 10520; Lerch v. Missoula Brick & Tile Co., 45 Mont. 314, 123 P. 25, Ann. Cas. 1914A, 346; State ex rel. Carter v. Kall, 53 Mont. 162, 162 P. 385, 5 A. L. R. 1309; County of Hill v. County of Liberty, 62 Mont. 15, 203 P. 500. And, in interpreting its provisions, the language employed must be construed in accordance with its usual, ordinary, and accepted meaning, so as, if possible, to give it vitality, and make operative all of its provisions. Sections 10519, 10520, R. C. 1921; County of Hill v. County of Liberty, supra. It should be so construed as to give a sensible and intelligent meaning to every part and avoid absurd and unjust consequences. Section 516, Lewis' Sutherland Stat. Const. (2d Ed.). And "words and phrases used in the Codes or other statutes of Montana are construed according to the context and the approved usage of the language." Session Laws of 1921, c. 4, § 3.
By the Eighteenth Amendment to the Constitution of the United States, which was ratified by the people of Montana, the "sale or transportation" of intoxicating liquor is prohibited. Our statute is substantially a copy of the act of Congress known as the Volstead Act (41 Stats. 305 [U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.]), prohibiting the sale or use of intoxicating liquor. The section upon which the information in this case is based, provides in part:
"No person shall * * * manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquors as a beverage may be prevented." Section 11049, R. C. 1921.
And section 11075, chapter 116 of the Laws of 1923, prescribes a penalty as follows:
"Any person who manufactures, sells, barters, transports, imports, exports, delivers, furnishes, or possesses any intoxicating liquor, in violation of any of the laws of the state of Montana, relating to intoxicating liquors, shall, for the first offense, be fined not less than two hundred ($200.00) dollars, nor more than one thousand ($1,000.00) dollars, and be imprisoned in the county jail not less than sixty days nor more than six months, and for a second or subsequent offense shall be fined not less than three hundred ($300.00) dollars nor more than two thousand ($2,000.00) dollars, and be imprisoned not less than six months nor more than two years in the state prison."
The word "transport" also appears in sections 11052, 11055, 11059, and 11060. In sections 11058 and 11071 the word "transported" is used, and in section 11073 both the words "transported" and "transporting" are employed. In the several sections of the statute wherein the word appears, including the section upon which the information is predicated (section 11049), by application of the rules of interpretation above stated, it is plain that a physical movement of liquor from place to place for unlawful purposes was intended. "Transportation" is one offense, and "sale" another and distinct crime. A "sale" is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property. Id. § 7581. As used in a like statute, it is held to mean a contract by which one sells and delivers intoxicating liquors. Lane v. State, 49 Tex. Cr. R. 335, 92 S.W. 839. It is a delivery of property from one man to another in consideration of some price. Dunn v. Mayo Mills, 134 F. 804, 67 C. C. A. 450. There must be a consideration or price, a seller, a purchaser, and a delivery of the thing sold. City of Iola v. Lederer, 86 Kan. 347, 120 P. 354. The evidence was...
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