State v. Schmitz

Citation19 Idaho 566,114 P. 1
PartiesSTATE, Respondent, v. C. E. SCHMITZ, Appellant
Decision Date18 March 1911
CourtUnited States State Supreme Court of Idaho

LOCAL OPTION-PROHIBITION DISTRICT-ALLEGATIONS OF INFORMATION-PROOFS-JUDICIAL NOTICE-EVIDENCE OF OTHER OFFENSES.

(Syllabus by the court.)

1. Under the provisions of sec. 12 of the local option statute (1909 Sess. Laws, p. 13), it is not necessary for the prosecutor to allege in his information for the violation of the local option statute the facts showing that the required number of voters petitioned for the election, or that the election was held, or that a majority of the people voted in favor of prohibiting the sale of intoxicating liquors; nor is it necessary to allege or prove that the defendant did not have a license permitting him to sell or dispose of intoxicating liquors. Under the provisions of this section of the statute, the burden is on the defendant to show that he held a license at the time of the commission of the act complained of and to justify his action thereunder or under some provision of the statute.

2. An information charging the unlawful sale of intoxicating liquors which concludes with the clause, "Contrary to the form, force and effect of the statutes in such cases made and provided and against the peace and dignity of the state of Idaho," is a sufficient allegation that the liquor was sold or disposed of contrary to law, whether it be the local option law or any other public statute.

3. Under the provisions of subd. 2, sec. 5950, Rev. Codes courts of this state will take judicial notice as to whether or not the local option statute is in force in any particular county, and will advise the jury accordingly in the case of a prosecution for a violation of such statute.

4. Where one is prosecuted for aiding and abetting an unlawful sale of intoxicating liquor in a prohibition district by prescribing a quart of whisky and directing on the prescription that the purchaser thereof shall "drink all at once," and the defendant claims that the direction as to the amount to take at a time was a mere pleasantry or humorous addition made to the prescription, it is not improper for the state to prove that at or about the same time the defendant gave other prescriptions for like quantities and wrote on the prescription the same direction "drink all at once."

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Prosecution for violation of the local option statute. Defendant was convicted and appeals. Affirmed.

Affirmed.

Frank Harris and Lot L. Feltham, for Appellant.

"An indictment under the local option law must show that the law was in force in the jurisdiction." (2 Current Law, 569, and cases cited note 98.)

"The court, under Code Civ. Proc., sec. 3150, specifying the facts the courts must take judicial notice of, cannot take notice of the fact that a local option election has been held in a particular county." (State v. O'Brien, 35 Mont. 482, 90 P. 514, 10 Ann. Cas. 1006.)

"An indictment under the local option law should aver facts showing that the act was in force at the time of the selling in the district where the sale took place." (Com. v. Reynolds, 4 Ky. Law, 623; Com. v. Throckmorton (Ky.), 32 S.W. 130; Com. v. Shelton, 99 Ky. 120, 35 S.W. 128; Norton v. State, 65 Miss. 297, 3 So. 665; Loughridge v. State (Miss.), 3 So. 667; State v. Searcy, 111 Mo. 236, 20 S.W. 186; Lowery v. State (Tex. Cr. App.), 34 S.W. 956; Alford v. State, 37 Tex. Cr. 386, 35 S.W. 657; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Gifford v. Falmouth, 4 Ky. Law, 902; Whitman v. State, 80 Md. 410, 31 A. 325; State v. Mackin, 41 Mo.App. 99.)

"Under the statute making a sale as a beverage a necessary element of the offense of liquor selling by a druggist, an indictment which fails to allege that the liquor was sold as a beverage is defective." (State v. Buckner, 20 Mo.App. 420; State v. Dunlap, 81 Me. 389, 17 A. 313; State v. Abbott, 31 N.H. 434.)

Proof of other distinct and disconnected crimes of the same character by defendant is not admissible. (McClain's Crim. Law, sec. 461; Janzen v. People, 159 Ill. 440, 42 N.E. 862; Parkinson v. People, 135 Ill. 401, 25 N.E. 764, 10 L. R. A. 91; Towne v. People, 89 Ill.App. 258; People v. Lonsdale, 122 Mich. 388, 81 N.W. 277.)

D. C. McDougall, Atty. Gen., O. M. Van Duyn and J. H. Peterson, Assistants, and J. L. Richards, Pros. Atty., for Respondent.

Sec. 12 as found in the Idaho local option statute would indicate a leaning on the part of the legislature, if not a complete intent, to do away altogether with proof before the jury that an election was had, allowing it to be determined judicially by the court and apparently allowing it to be reached in the way of a defense by the defendant. In Georgia, Pennsylvania and Virginia, it is held that the courts judicially recognize the fact that a local option law is in operation in the counties which have adopted it. (Combs v. State, 81 Ga. 780, 8 S.E. 318; Barker v. State, 117 Ga. 428, 43 S.E. 747; Rauch v. Com., 78 Pa. 490; Savage v. Com., 84 Va. 582, 5 S.E. 563; Thomas v. Com., 90 Va. 92, 17 S.E. 788; Hargrave v. Com. (Va.), 22 S.E. 314; see, also, Young v. Com., 14 Bush (Ky.), 161; Slymer v. State, 62 Md. 238; Mackin v. State, 62 Md. 244; Jones v. State, 67 Md. 256, 10 A. 216; State v. Bertrand, 72 Miss. 516, 17 So. 235; State v. McIlvenna, 21 S.D. 489, 113 N.W. 878.)

Evidence of other offenses for the purpose of showing motive and intent is competent evidence. (Underhill, Crim. Ev., 2d ed., sec. 88.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

The appellant was convicted in the district court of Washington county for aiding and abetting Joseph Lorton, a druggist, in the unlawful sale of intoxicating liquors. The charging part of the information is as follows:

"That the said C. E. Schmitz, at Washington county, Idaho, on or about the 4th day of February, 1910, then and there being, and being then and there a duly licensed physician in this state, did unlawfully aid and abet an unlawful sale of intoxicating liquor to one Lem Wilkerson, by then and there writing for the said Lem Wilkerson a certain alleged prescription for whisky, with the knowledge and intent that said alleged prescription would be, and the same was, used by the said Lem Wilkerson to make an unlawful purchase of said liquor from a pharmacist, in Washington county, Idaho, to wit, Joseph Lorton, at Cambridge, said county and state; which said alleged prescription was in the words and figures following: 'Dr. C. E. Schmitz, Physician and Surgeon. Cambridge, Idaho, R. for Lem Wilkerson. Whiskey 1 qt. Sig. Drink all at once. 15024. 2/4/'10. Dr. S. '--all of which is contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the state of Idaho."

The first question requiring our consideration is the contention made by appellant that the information was insufficient to charge the commission of a public offense, for the reason that it failed to charge that Washington county was a prohibition district. Our consideration of this question will carry with it the question as to the necessity of making proof to the same effect. It will be observed from the information as above set forth that it contained no charge or allegation that the local option law was in force in Washington county or that the county constituted a prohibition district, except as it charged that the acts alleged were "contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the state of Idaho."

Sec. 12 of the local option statute (1909 Sess. Laws, p. 13) provides as follows:

"In any complaint, information or indictment for selling or disposing of intoxicating liquors without license in a prohibition district, it shall not be necessary to set forth, neither shall it be necessary to prove upon the hearing or trial, the facts showing that the required number of voters petitioned for the election, that the election was held or that a majority voted in favor of prohibiting the sale as herein provided, nor shall it be necessary to allege or prove that the defendant did not have a license lawfully permitting him to sell or dispose of intoxicating liquors, but the burden shall be on the defendant to show that he held such a license at the time of the commission of the act complained of."

It will be seen from the foregoing provisions of the statute that it is specifically declared thereby that it shall be unnecessary to allege any of the things required to be done to hold a local option election, and that it is likewise unnecessary to allege that an election has been held, and that a majority of the people have voted in favor of prohibiting the sale of intoxicating liquors within the county, nor is it necessary to allege or prove that the defendant did not have a license. It is likewise specifically provided "that the burden shall be on the defendant to show that he held a license at the time of the commission of the act complained of." Under the statute of this state, it is unlawful to sell intoxicating liquor without a license except for medicinal purposes, whether it be in a prohibition district or elsewhere, and so the statute (sec. 12 of the local option law) evidently intended to rest the burden of showing the legality of the sale on the defendant, and relieve the state of the necessity, in the first place, of showing that the sale was an unlawful sale. The legislature undoubtedly thought it would be enough for the state to show that a sale of liquor had been made, or, as in the case at bar, that the defendant had aided and abetted in an unlawful sale, and...

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6 cases
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Idaho
    • 17 Septiembre 1913
    ......Dexter, 154 F. 890-895; Van. Gesner v. United States, 153 F. 46, 82 C. C. A. 180;. Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; Prettyman v. United States, 180. F. 30, 103 C. C. A. 384; State v. Davis, 6 Idaho. 159, 53 P. 678; State v. Schmitz, 19 Idaho 566, 114. P. 1; State v. Hammock, 18 Idaho 424, 110 P. 169;. Qualey v. Territory, 8 Ariz. 45, 68 P. 546;. State v. Low, 6 Kan. App. 110, 50 P. 914;. Territory v. McGinnis, 10 N. M. 269, 61 P. 208;. People v. Harben, 5 Cal.App. 29, 91 P. 398;. People v. Smith, 9 Cal.App. ......
  • State v. Sheehan
    • United States
    • United States State Supreme Court of Idaho
    • 28 Mayo 1920
    ...... sometimes for purpose of corroboration. (State v. Lancaster, 10 Idaho 410, 78 P. 1081; State v. Henderson, 19 Idaho 524, 114 P. 30; State v. Hammock, 18 Idaho 424, 110 P. 169; State v. Driskill, 26 Idaho 738, 145 P. 1095; State v. Schmitz, 19 Idaho 566, 114 P. 1; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. Davis, 6 Idaho 159, 53 P. 678; State v. McGann, 8 Idaho. 40, 66 P. 823.). . . Instructions. identical, in the substance thereof, with those given by the. court in this case have been approved by our court ......
  • State v. Kusick
    • United States
    • Supreme Court of Minnesota (US)
    • 7 Enero 1921
    ...... Puckett v. State, 71 Miss. 192, 14 So. 801; Irby. v. State, 91 Miss. 542, 44 So. 801. . .          In some. jurisdictions judicial notice is taken. Combs v. State, 81 Ga. 780, 8 S.E. 318; Woodard v. State, 103 Ga. 496, 30 S.E. 552; State v. Schmitz, 19 Idaho 566, 114 P. 1; State v. Gutke, 25 Idaho 737, 139 P. 346; State v. Ade,. 178 Ind. 588, 99 N.E. 983; Jay v. O'Donnell, 178. Ind. 282, 98 N.E. 349, Ann. Cas. 1915C, 325; State v. Arnold, 80 S.C. 383, 61 S.E. 891; Thomas v. Commonwealth, 90 Va. 92, [148 Minn. 4] 17 S.E. 788;. Savage v. ......
  • Cornell v. Mason
    • United States
    • United States State Supreme Court of Idaho
    • 13 Abril 1928
    ...... is an escape. (C. S., sec. 9418.) And a sheriff permitting. such freedom to a prisoner, commits a wilful neglect of duty. (State v. Welsh, 109 Iowa 19, 79 N.W. 369.) So. reprehensible is the conduct of a sheriff in voluntarily. permitting an escape that it is made a felony by ... bearing upon the question of intent or motive. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Schmitz, 19 Idaho 566, 114 P. 1; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. McGann, 8 Idaho 40, 66 P. 823; 1 Wigmore on Evidence,. sec. 300 et ......
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