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

198 P. 767

58 Utah 270

STATE v. RICKENBERG

No. 3644

Supreme Court of Utah

June 2, 1921

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.

THURMAN J., CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

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:

"Henry Rickenberg, having been heretofore duly committed to this court by Henry C. Lund, a committing magistrate of said county, to answer to this charge, is accused by Frank S. Richards, district attorney for the Third judicial district of the state of Utah Salt Lake county, by this information, of the crime of having possession of intoxicating liquor, committed as follows, to wit: That the said Henry Rickenberg, at the county of Salt Lake, state of Utah on the 28th day of September, A. D. 1920, did then and there willfully, unlawfully, and feloniously have in his possession intoxicating liquor, to wit, whisky; the said Henry Rickenberg being then and there a persistent violator of title 54, section 3343, Compiled Laws of Utah 1917, he having heretofore, to wit, on the 27th day of June, 1919, in the city court of Salt Lake City, before Henry C. Lund, city judge and ex officio justice of the peace in Salt Lake City, Salt Lake county, state of Utah been convicted of having in his possession intoxicating liquor. Contrary to the provisions of the statute of the state aforesaid in such cases made and provided, and against the peace and dignity of the state of Utah."

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:

"'Willfully' is equivalent to 'knowingly.'"

"The term 'willfully' implies that the act is done knowingly."

"The word 'willfully' implies, on the part of the wrongdoer, knowledge, and a purpose to do the wrongful act."

"'Willfully,' as used when saying that an act was willfully done, implies that the act was done by design; done for a set purpose; and it would follow that it was knowingly done."

"'Willfully,' as used in connection with an act forbidden by law, means that the act must be done knowingly or intentionally, and that the act was committed with knowledge, and that the will consented to, designed, and directed the act."

"In common parlance 'willfully' is used in the sense of 'knowingly,' as distinguished from 'accidental' or 'involuntary.'"

"A 'willful failure' to comply with the provisions of the mine law means that there must have been some knowledge that the party was violating it; some knowledge which should have induced him not to do what he did do; some knowledge of the fact."

"An indictment for perjury which charged that the defendant 'feloniously, willfully, and corruptly did depose,' etc., but omitted the word 'knowingly,' is not bad on account of the omission of such word, though it is used in the statute."

"The word 'willfully' as used in the statute punishing perjury, the same being a false statement willfully made,' is synonymous with 'knowingly.'"

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:

"The word 'willfully' implies the doing of an act knowingly, and with stubborn purpose."

"A 'wilful act' is one that is done knowingly and purposely."

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...