State v. Rickenberg
Decision Date | 02 June 1921 |
Docket Number | 3644 |
Citation | 198 P. 767,58 Utah 270 |
Court | Utah Supreme Court |
Parties | STATE v. RICKENBERG |
Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.
Henry Rickenberg was charged with having unlawful possession of intoxicating liquor. From a judgment dismissing the case, the State appeals.
REVERSED AND REMANDED.
E. A Rogers, Dist. Atty., of Salt Lake City, for the State.
Hancock & Barnes, of Salt Lake City, for respondent.
The questions presented on this appeal relate, primarily, to the sufficiency of the information upon which the defendant was brought to trial. The information reads as follows:
Compiled Laws of Utah 1917, § 3343, defines the offense which the state intended to charge. The last sentence of the section reads:
"It shall be unlawful for any person within this state knowingly to have in his or its possession any intoxicating liquors, except as in this title provided." (Italics ours.)
The defendant was arranged and pleaded not guilty. The case afterwards came on for trial. A jury was impaneled and a witness sworn for the state. In response to a question by the state's attorney the witness stated his name, whereupon the attorney for the defendant objected to the introduction of any evidence on the alleged grounds that the information does not state facts sufficient to constitute a felony, or any public offense. The sufficiency of the information was challenged by the defendant on the specific ground that the act charged as an offense was not alleged to have been done "knowingly," as required by the statute above quoted. The trial court sustained the objection. The state's attorney then requested leave to amend the information by inserting therein the word "knowingly" next before the words "having possession of intoxicating liquors," and also by inserting the same word next before the word "willfully." The court refused the request for leave to amend, and upon motion of defendant's attorney dismissed the case and discharged the jury, from which judgment the state appeals.
Compiled Laws of Utah 1917, § 9208, subd. 1, provides that the state may appeal from a judgment for defendant on a demurrer to the information or indictment. The record shows that the appeal was taken in time.
Appellant contends that the court erred in sustaining respondent's objection to the introduction of evidence and also in refusing appellant's request for leave to amend the information. In support of its contention appellant insists that the information states facts sufficient to constitute the offense defined in the statute above quoted; that the word "willfully" is of similar import as the word "knowingly," and is the same in substance and effect. Many authorities are cited in support of this contention. See especially Ex parte Cowden, 74 Tex. Crim. 449, 168 S.W. 539; State v. Muller, 80 Wash. 368, 141 P. 910; Fry v. Hubner, 35 Ore. 184, 57 P. 420. The following excerpts from Words and Phrases, which are supported by numerous cases, illustrate the almost universal trend of judicial opinion. We quote from volume 8, pp. 7474 and 7475:
Many other pertinent paragraphs might be quoted from the pages referred to.
In the Second Series of Words and Phrase, vol. 4, at page 1304, we find the following:
See other paragraphs in the same connection.
As before stated, these paragraphs seem to be supported by abundant authority cited in connection therewith, many of which cases we have carefully examined and find that they faithfully...
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State v. Kusel
... ... information. ( State v. Jenkins, 92 Mo.App. 439; ... State v. Emberton, 45 Mo.App. 56; Tatum v ... State, 66 Ala. 465; Razee v. State, 73 Neb ... 732, 103 N.W. 438; Queen and Norton, Fontescue 232, 92 Eng ... Rep. 831.) In State v. Rickenberg, (Utah,) 58 Utah ... 270, 198 P. 767, 769, the court said: ... "The ... amendment may be as to matter of substance as well as to ... matter of form. It does not follow that the prosecutor by ... amendment can alter the nature of the case. He cannot ... substitute one offence for ... ...
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Ousley v. State
... ... indictment does not fail to charge an offense because using ... "wilful" where the statute uses ... "knowingly;" the words being synonymous and ... "wilful" being of more extensive meaning ... Ex ... parte Cowden, 168 S.W. 539, 74 Tex. Crim. Rep. 449; State ... v. Rickenberg, 198 P. 767, 58 Utah 270; Kline v ... State, 44 Miss. 317; State v. Hinton, 139 Miss ... 413, 104 So. 354; Roberts v. State, 55 Miss. 421; ... Richburger v. State, 90 Miss. 806, 44 So. 772; ... State v. Presley, 91 Miss. 377, 44 So. 827; State v ... Traylor, 100 Miss. 544, 56 So. 521 ... ...
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State v. Johnson
... ... time after the defendant has pleaded to the merits, or during ... the trial." Under such a statute we think the district ... attorney was authorized with only "leave," and ... without express "direction," of the court to file a ... proper amended information. State v ... Rickenberg , 58 Utah 270, 198 P. 767. The defendant ... entered his plea of not guilty to the amended information ... without claiming surprise, or as being unprepared to go on ... with the case, and without in any particular challenging the ... amended information, until ten days after the plea was ... ...
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Peterson v. Jacobson
...Ohio App. 101, 90 N.E.2d 394, 397 (1950). An amendment is not permissible if it changes the nature of the offense. State v. Rickenberg, 58 Utah 270, 198 P. 767, 769 (1921). To permit otherwise would deprive one accused of crime of his constitutional right to know the nature and cause of the......