State v. Schweitzer

• Court: Idaho Supreme Court
• Writing for the Court: AILSHIE, J.
• Citation: State v. Schweitzer, 111 P. 130, 18 Idaho 609 (Idaho 1910)
• Decision Date: 17 October 1910
• Parties: STATE, Respondent, v. GEORGE SCHWEITZER, Appellant

111 P. 130

18 Idaho 609

STATE, Respondent, v. GEORGE SCHWEITZER, Appellant

Supreme Court of Idaho

October 17, 1910

IRREGULAR VERDICT-SHORT WEIGHTS-SELLING BY SHORT WEIGHT.

(Syllabus by the court.)

1. In a prosecution for unlawfully selling lard by short weight a verdict by the jury in the following form: "We, the jury in the above-entitled case, find the defendant, George Schweitzer, guilty of selling by short weights as charged in the complaint," is sufficiently definite and certain as to the intent of the jury to "find the defendant guilty as charged in the complaint" to justify and support a judgment of conviction.

2. Where M. went to a butcher-shop and told the manager thereof that he wanted to buy "a three-pound pail of lard" and he was given a pail of lard commonly known and designated as a three-pound pail, for which he paid the price demanded and upon weighing the same it appeared that the bucket and lard together weighed the gross sum of three pounds and three-fourths of an ounce, and that the net weight of the lard contained in the bucket was two pounds and nine and one-half ounces, and the vendor of the lard is subsequently prosecuted under the provisions of sec. 7109 of the Rev. Codes, for selling by short weight, it is a question to be submitted to the jury as to whether or not the purchaser offered to buy and the seller represented that he was selling three pounds of lard net or gross, and it was error for the court to instruct the jury that when the purchaser asked for a three-pound pail of lard "he must be taken to have meant, and the defendant must be taken to have understood, that the purchaser was to receive three pounds of lard irrespective of the weight of the pail."

APPEAL from the District Court of the Third Judicial District of the State of Idaho, in and for Ada County. Hon. Fremont Wood Judge.

Prosecution for sale of lard by short weights under the provisions of sec. 7109 of the Rev. Codes. Verdict and judgment of conviction, from which defendant appealed. Reversed.

Judgment reversed and a new trial ordered.

C. M Kahn, and Hawley, Puckett & Hawley, for Appellant.

The jury in this case did not find against the defendant upon the issue as expressed in the complaint, nor was there a special verdict found; but it sought to and did find appellant guilty of a crime--or supposed crime, rather--which is not only not charged in the complaint but is not known in the criminal law generally, and is not a creature of our statute, to wit, "selling by short weights."

California has a statute identical with sec. 7929, from which our section was undoubtedly taken. (Kerr's Cal. Code (Penal), sec. 1162; People v. Tilley, 135 Cal. 61, 67 P. 42; People v. Small, 1 Cal.App. 320, 82 P. 87; Bishop's New Criminal Proc., sec. 1005.)

The facts as shown by the respondent were not sufficient to justify such a verdict and judgment even if the same is valid and was properly rendered and entered. (Harris v. Allwood (Eng.), 57 J. P. 7; State v. Swift & Co., 84 Neb. 244, 120 N.W. 1127.)

The court erred in giving instruction No. 6. What the complaining witness meant and what the appellant understood in this transaction were matters to be determined by the jury from the evidence, and it was error upon the part of the court to instruct them as to such meaning or understanding.

D. C. McDougall, Attorney General, Chas. P. McCarthy, Prosecuting Attorney, and B. S. Crow, for Respondent.

If it were necessary to name the offense, since the statute itself does not give a name to the offense, a brief general description is sufficient. (22 Cyc. 302, and cases under note 49.)

"Generally, indictments or informations for statutory offenses, although they give an erroneous appellation, or fail to give any appellation to the offense, if the facts constituting the offense as defined by the statute are sufficiently stated, are good." (22 Cyc. 302, and cases under notes 51 and 52; People v. McCarty, 48 Cal. 559; People v. Brady (Cal.), 65 P. 823.)

It is very generally held that the verdict is good if the intention of the jury can be ascertained. (Kellum v. State, 64 Miss. 226, 1 So. 174; State v. Wilson, 40 La. Ann. 751, 5 So. 52, 1 L. R. A. 795; Cheek v. Commonwealth, 87 Ky. 42, 7 S.W. 403; Crook v. State, 27 Tex. App. 198, 11 S.W. 444; Bidwell v. State (Tex. Cr.), 20 S.W. 556; Stepp v. State, 31 Tex. Cr. 349, 30 S.W. 753; Pave v. State (Tex. Cr.), 20 S.W. 762; Jenkins v. State, 92 Ga. 470, 17 S.E. 693; People v. O'Callaghan, 2 Idaho 156, 9 P. 414; State v. Collyer, 17 Nev. 275, 30 P. 891; Burgess v. State, 33 Tex. Cr. 9, 24 S.W. 286; Wallace v. State, 70 Tenn. (2 Lea) 29; State v. Jenkins, 60 Wis. 599, 19 N.W. 406.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

Appellant was convicted of a misdemeanor in the district court for a violation of sec. 7109 of the Penal Code. The complaint charged that the defendant did "unlawfully sell to one Claude D. Mason, as three pounds of lard, a certain bucket of lard which then and there contained only two pounds nine and one-half ounces of lard, and was not then and there full weight, at the rate of sixteen ounces to the pound, lard being then and there an article which is sold in commerce by avoirdupois weight." The jury rendered a verdict in the following form: "We, the jury, in the above-entitled case find the defendant, George Schweitzer, guilty of selling by short weights as charged in the complaint." The appellant attacks this verdict and insists that under the provisions of sec. 7929 of the Rev. Codes it is void for uncertainty and informality. That section of the statute reads as follows:

"If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict."

Counsel for appellant rely on People v. Tilley, 135 Cal. 61, 67 P. 42; People v. Small, 1 Cal.App. 320, 82 P. 87, and Bishop's New Criminal Procedure, sec. 1005, as sustaining his position that this verdict is faulty and is not sufficient on which to found a judgment of conviction. In People v. Tilley defendant was being prosecuted for receiving stolen property, knowing the same to have been stolen, and retaining it for his personal gain. The verdict of the jury was as follows: "We, the jury in the above-entitled cause, find the defendant, Charles M. Tilley, guilty of receiving stolen property." The court held the verdict insufficient and based it on the ground that the mere fact of receiving stolen property did not constitute a crime, but that it must be accompanied with the knowledge that it was stolen and an intent to derive personal gain from its detention. People v. Small follows the Tilley case and is to the same effect.

These cases are hardly parallel with the case at bar. Here the jury found the defendant "guilty of selling by short weights as charged in the complaint." The words, "guilty of selling by short weights," are found in the complaint or information, and, indeed, the complaint designates the offense as "the crime of selling by short weights as defined by sec. 7109 of the Penal Code." But the words, "of selling by short weights," might be treated as surplusage and still the verdict would be good, for then it finds the defendant "guilty as charged in the complaint. " This position seems to be supported by abundant authority. (People v. O'Callaghan, 2 Idaho 156, 9 P. 414; People v. McCarty, 48 Cal. 557; People v. Brady (Cal.), 6 Cal. Unrep. 719, 65 P. 823; State v. Collyer, 17 Nev. 275, 30 P. 891; Wallace v. State, 70 Tenn. 29.) There can be no doubt of the intention of the jury in this case to find the defendant guilty as charged in the complaint. Where the intent of the jury is clear, the requirements of the statute are fully met. (Kellum v. State, 64 Miss. 226, 1 So. 174; State v. Wilson, 40 La. Ann. 751, 5 So. 52, 1 L. R. A. 795; Cheek v. Commonwealth, 87 Ky. 42, 7 S.W. 403; Birdwell v. State (Tex. Cr.), 20 S.W. 556.)

The next question presented by appellant is the sufficiency of the evidence to sustain the verdict and judgment. This was a prosecution under the provisions of sec. 7109, Rev. Codes for selling lard by short weight. On the 21st of January of this year, Claude D. Mason, state chemist, accompanied by James H. Wallis, state dairy, food and sanitary inspector and ex-officio sealer of weights and measures, went to the shop of the Boise Butcher Co. and asked the defendant, who is president of the company, for a "three-pound pail of lard." The lard was passed over to Mason who paid for the same. He took it away and weighed it and found that the lard contained in the pail weighed two pounds nine and one-half ounces, and that the lard and bucket together weighed three pounds and three-fourths of an ounce. Mason and Wallis thereupon returned to the shop of the Boise Butcher Co. and weighed a large number of the lard cans and found that practically none of them contained the amount of lard, net, that they were rated to hold;...