State v. Smith
| Decision Date | 01 December 1925 |
| Docket Number | 5793. |
| Citation | 241 P. 522,75 Mont. 22 |
| Parties | STATE v. SMITH. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; H. G. Rogers, Judge.
John A Smith, informed against as Jack Smith, was convicted of giving intoxicating liquor to minors, and he appeals. Affirmed.
Smith & Kelly, of Dillon, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
The defendant, John A. Smith, has appealed from the judgment pronounced on his conviction of the crime of giving intoxicating liquor to minors.
The evidence adduced on the trial, briefly stated, is as follows One Percy Williams testified that on the morning of March 7 1925, at the request of defendant, he went from Virginia City to Laurin, where he procured from a person to whom he was directed by defendant a one-gallon jug of moonshine whisky, placing it in a traveling bag furnished by defendant for that purpose and charging the whisky to defendant, and that, on his return to Virginia City, he was accompanied to defendant's cábin by one Joe Judge. Both Williams and Judge testified that williams then delivered the jug to defendant, who opened it, took a drink himself, and gave each of the witnesses a drink and put the jug away; whereupon the witnesses left the cabin. Each of these witnesses testified that he returned to defendant's cabin in the afternoon, brought no liquor with him, but proceeded to drink with defendant from his supply; that while they were thus engaged, one Robert Allen, a boy 17 years of age, was seen approaching, whereupon defendant stated that he wanted to see young Allen, and requested Williams to call the boy in. Allen entered in response to the call, and thereafter drank from a bottle sitting on the table. Later defendant requested young Allen to go after one Joe Gillipsie, a youth of 20 years; Gillipsie was brought to the cabin, and the whole party continued drinking. When the first bottle was emptied, a second was produced from the mattress at the foot of defendant's bed, and when this was emptied defendant took it to a rear room and returned it to the table full of moonshine whisky stating, "There is plenty more of it." Both boys became drunk, and were expelled from the cabin by defendant. After an investigation was instituted, the defendant accused each of the boys of informing against him.
Defendant did not deny the testimony concerning the drinking party, but denied that he, personally, gave liquor to the boys, and denied that he sent Williams for the jug of liquor or instructed him to call young Allen to the cabin; he contended that the liquor belonged to Williams. The defense introduced some evidence as to defendant's good reputation in the community; young Allen, then, on rebuttal, told of another occasion when defendant invited him to the cabin and gave him four drinks of moonshine whisky.
Defendant makes but two specifications of error, to wit: (1) The evidence is insufficient to support the judgment, in that there is no evidence tending to connect the defendant with the crime charged, other than that of Percy Williams, an accomplice. (2) The court erred in refusing to instruct the jury, on defendant's request, to the effect that a defendant cannot be convicted upon the uncorroborated evidence of an accomplice.
1. Defendant's contention, as to the first assignment, is that, as there is no direct evidence showing that defendant actually handed the liquor to Allen, it devolved upon the state to prove that defendant was the owner of the whisky, and that this proof was furnished from the lips of Williams, an accomplice in procuring the liquor. This argument is fallacious; the procuration of the liquor was an independent transaction, and was closed when Williams left the cabin after delivery to defendant.
There is no intimation that Williams had any knowledge that defendant intended to give any portion of the liquor to...
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