State v. Snyder.

• Decision Date: 23 June 1924
• Docket Number: No. 2805.,2805.
• Parties: STATEv.SNYDER.
• Court: New Mexico Supreme Court

30 N.M. 40

227 P. 613

STATE

v.SNYDER.

No. 2805.

Supreme Court of New Mexico.

June 23, 1924.

Syllabus by the Court.

Two separate counts in an information, each charging the unlawful sale of intoxicating liquor to the same person on the same day, do not necessarily charge the same offense, as such offenses are not continuous in their nature, and both could be committed on the same day, and each be punishable as a separate offense.

The proof in a criminal case need not conform to the exact date laid in the information or indictment, it being sufficient to prove the commission of the offense at any time prior to the filing of the information or the return of the indictment and within the limitation period.

The intoxicating character of liquor need not be established by a chemical analysis, but may be proven by testimony of persons who have had experience in tasting and drinking it and who know its effect.

A motion to strike testimony which has been received without objection is addressed to the discretion of the trial court, and is not reviewable upon appeal, except to determine whether such discretion has been abused.

Testimony of a witness that at the time he committed two burglaries he was intoxicated upon liquor purchased from the defendant is admissible to establish a general charge of keeping intoxicating liquor for sale.

Evidence of other sales of intoxicating liquor than those specifically charged in the information is relevant to establish a general charge of the unlawful possession of such liquor for the purpose of sale, and should not be considered by the jury as bearing upon the specific sales charged, and it is error to refuse such an instruction, as the defendant is entitled to have the purpose of such evidence explained, and the jury directed to consider it for such purpose only.

Where a penal statute contains an exception which is so incorporated or interwoven in the language defining such offense as to become a constituent or necessary part of the offense, and so essentially descriptive of it that its ingredients cannot be accurately and clearly defined if the exception is omitted, it is necessary that an indictment or information drawn thereunder negative such exception.

If the language defining such offense is so separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without reference to the exception, an indictment or information need not negative such exception.

The exception contained in section 1, c. 151, Laws 1919, is not a necessary or constituent part of the offense therein defined, nor necessarily descriptive thereof, and therefore need not be negatived in an indictment or information drawn thereunder.

The term “offense,” as used in section 4, c. 151, Laws 1919, means an offense which has been legally ascertained and adjudicated to be so by a court of competent jurisdiction, that is, by conviction, and until a person has been once convicted under the statute there can be no subsequent offense thereunder.

Appeal from District Court, Colfax County; Leib, Judge.

C. W. Snyder was convicted of violating the prohibition law, and he appeals. Reversed and remanded, with directions.

The exception contained in Laws 1919, c. 151, § 1, as to manufacture or possession of intoxicating liquor for sale, that it shall not apply to denatured or wood alcohol, or grain alcohol when intended and used for medicinal, chemical, or scientific purposes, or to wine when intended and used for sacramental purposes, need not be negatived in an indictment or information drawn thereunder.

H. A. Kiker, of Raton, for appellant.

M. J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.

BRATTON, J.

The district attorney of the Eighth judicial district filed an information in this cause, charging the appellant with six separate violations of chapter 151, Laws 1919, known as the Prohibition Law; the first five counts charging him with the unlawful sale of intoxicating liquor, and the sixth charging him with the unlawful possession of the same for the purpose of sale. The third and fifth counts were dismissed, and appellant was convicted upon the remaining ones. From the sentence imposed he has perfected this appeal.

[1][2] 1. It is argued that counts numbered 1 and 2 charge but one offense, as the language used is identical; both charging the sale of intoxicating liquor to C. T. Lobb on April 4, 1922. A review of the record fails to show that any such contention was made in the trial court, or any such question presented there. On the contrary, appellant contended, in a motion to quash the information and in a motion to require the state to elect upon which count it would prosecute, that the first count charged a misdemeanor, and that each of the others charged a felony; they being separate and subsequent offenses. This question must have been presented to the trial court in order to be reviewable here. The contention is not sustainable for the further reason that, while an indictment or information must charge the time the offense was committed, the proof need not be confined to that exact time, except in those cases where time is an ingredient or the essence of the offense, such as burglary in the nighttime, or the violation of a Sunday law. Aside from these exceptions, if the proof shows a violation to have occurred at any time prior to the filing of the information or the return of the indictment, and within the statute of limitation covering the offense charged, it is sufficient and need not conform to the date laid in the pleading. 1 Bishop Cr. Proc. p. 246; 14 R. C. L. p. 180; State v. Fellers, 140 Mo. App. 723, 127 S. W. 95; State v. G. S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724; Miller v. State, 33 Miss. 356, 69 Am. Dec. 351; Bennett v. State, 78 Tex. Cr. R. 231, 181 S. W. 197; State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R. A. (N. S.) 977; State v. Dufour, 123 Minn. 451, 143 N. W. 1126, 49 L. R. A. (N. S.) 792, and the notes appended thereto.

The offenses charged in these two counts not being continuous in their nature, the appellant could be convicted upon each of them, where there is proof that separate sales were made, even though on the same day. The fact that the same date is laid in each of the counts is immaterial, where they are sustained by proof showing separate sales within the period of limitation, even though neither occurred on that day, or one then and the other on a different day, or both on that day. State v. Freeman, supra. We have here an information charging three separate sales of intoxicating liquor made to Lobb, and the proof fully establishes three separate sales made to him, all prior to the filing of the information and within the limitation period. This is sufficient, and meets all the requirements of the law.

[3] 2. The sufficiency of the evidence to establish the intoxicating character of the liquor sold is seriously challenged, and this is the next question before us. The prosecuting witness, Lobb, testified that, prior to the time he purchased the liquor in question, he had 10 years' experience in tasting and drinking intoxicating liquors; that he had drunk corn whisky, and knew what it was, and was familiar with its effect; that when he went into appellant's place of business he talked for a while with a stranger and then called for a drink; that appellant looked at the stranger, who nodded his head to appellant, and that thereupon appellant served Lobb and the stranger, who became Lobb's guest in taking a social drink; that appellant kept the liquor in a bottle in his hip pocket, and served it by pouring it from the bottle into small whisky glasses, selling at 50 cents per drink; and that on one of the three occasions in question Lobb called for white whisky. Based upon this qualification, the witness testified that the liquor he bought from appellant was corn whisky and that it had an intoxicating effect upon him. Other evidence of an incriminating character was given by witnesses who testified they smelled Lobb's breath just before he went into appellant's place of business on one of these occasions, as well as just after he came out; that they could not detect the odor of liquor before he went in, but could upon his coming out. The proof, as a whole, is sufficient to establish that the liquor was intoxicating. It is the well–established rule, declared by the overwhelming weight of modern authority, that a chemical analysis is not necessary to prove that a certain liquor is intoxicating, but that it may be established by persons possessing experience in drinking it and who know its effect. A chemical analysis would doubtless be more reliable, and perhaps entitled to greater weight; but it is not necessary, and is not the only way of proving the required fact. Neither is it necessary for such a witness to be able to give the chemical contents of liquor, any more than it would be required of one testifying with reference to salt or sugar. Clearly the experience of this witness was sufficient to make his testimony admissible, and, if believed by the jury, would support a conviction. In Carson v. State, 69 Ala. 235, the following language, which was quoted with approval in the recent Texas case of Cathey v. State. 94 Tex. Cr. R. 599, 252 S. W. 534, was used:

“It was competent for the witness [Yarborough] to testify to his opinion as to the intoxicating properties of the bitters proved to have been sold by the defendant. This is a matter of common knowledge, where a witness is shown to have had an opportunity of personal observation, or of experience, such as to enable him to form a correct opinion. It is not required that he should be a technical expert.”

The Supreme Court of Georgia, in Wilcox v. State, 8 Ga. App. 536, 69 S. E. 1086, thus expressed its views upon this question:

“The plaintiff in error was convicted of selling intoxicating liquor. According to the...