State v. Sorenson

Decision Date15 December 1925
Docket Number1234
Citation241 P. 705,34 Wyo. 90
PartiesSTATE v. SORENSON [*]
CourtWyoming Supreme Court

Rehearing Denied 241 P. 607.

Rehearing in this case and in 1245 denied January 26th, 1926, Reported at: 34 Wyo. 90 at 97; see 241 P. 607.

APPEAL from District Court, Niobrara County; CYRUS O. BROWN, Judge.

Lulu Sorenson was convicted of violation of the Prohibition Law and she appeals.

Affirmed.

Thomas M. Fagan for appellant.

The court had no jurisdiction of defendant; the information was not verified and was insufficient to authorize the issuance of a bench warrant for defendant's arrest; the court erred in issuing a bench warrant; the court erred in denying defendant's motion to quash, and ordering defendant to plead to the information of August 23rd; defendant had no notice of the information of August 30th, and did not waive defects therein; defendant did not plead to the information of August 30th and the court erred in pronouncing judgment thereon; 14 R. C. L. p. 152; informations must be verified; 7426 C. S. Const. Art. I, Section 4; State vs Boulter, 5 Wyo. 236; a plea of "not guilty" must be entered on the information; 7496 C. S. a plea of guilty must be entered in the records of the court; no plea was entered on the information on which judgment was rendered; an unverified information is insufficient to authorize the issuance of a Bench Warrant; Hollibaugh & Bunten vs. Hehn, 13 Wyo. 269; defendant having been tried upon an information upon which no issue had been joined, the judgment is void; 8 R. C. L. 72, p. 109; after introducing testimony of one offense, the court should have sustained defendant's objection to receiving evidence of other offenses; Fields vs. Territory, 1 Wyo. 78; the court erred in permitting the prosecuting witness to testify from books not written up at time of the transaction referred to, but made up at a later date, by prosecuting witness and the county attorney. This evidence was not admissible; 69 R. C. L. 909; 11 Cyc. of Ev. 106; the court erred in refusing proof of the habitual intoxication of the witness Penn; 28 R. C. L. 618-619; such proof was competent for purposes of impeachment; the court erred in refusing proof that the compensation of prosecuting witness had been made contingent upon conviction of defendant; 28 R. C. L. 600; the court erred in receiving plaintiff's Exhibit Z, there being no proof that it was fit for beverage purposes, and defendant's possession thereof having been explained without contradiction; misconduct of the prosecuting attorney from the trial and argument in misstating evidence was prejudicial to defendant; Paper Company vs. Banks, 15 Nebr. 20; 2 R. C. L. 438; State vs. Rodriguez, 31 Nev. 342.

David J. Howell, Attorney General, and Ray E. Lee Asst. Attorney General, for respondent.

Defendant appeared, waived formal arraignment, entered a plea of not guilty, and made no move to quash the Bench Warrant. The information of August 23rd is not in the record, and the motion to quash it is not before the court. It was proper for witnesses to refresh their memory from memoranda. Defendant was tried upon an information containing three counts, which were properly joined; Wharton's Criminal Procedure (10th Ed., Vol. 1. Sec. 385; 31 C. J. 784-786; Laws of 1921, Chapter 117, Sec. 30; witnesses Penn and Egelhoff delivered two bottles of whiskey to the county attorney, which they testified was purchased from defendant; Exhibit "Z" was proven to be whiskey from a bottle broken by defendant's husband, and secured by prosecuting witness and proven to contain more than one-half of 1% of alcohol; defendant's several specifications of error as to the admissions of evidence are without merit; no evidence was offered by defendant to prove that witness Penn was an habitual drunkard; prosecutor's request for conviction was not misconduct; objections that information was not verified was not made before or at the trial and was therefore waived; James vs. State, 27 Wyo. 378; 31 C. J. 871-873; State vs. Kusel, 29 Wyo. 287; 7483, 7487 C. S. Hollibaugh & Bunten vs. Hehn, 13 Wyo. 269; 31 C. J. 648; White vs. State, 23 Wyo. 130; 31 C. J. 881; failure to endorse plea on information does not invalidate conviction; Waldschmidt vs. Ter. 1 Wyo. 49; 16 C. J. 395.

RINER, District Judge. POTTER, C. J., and KIMBALL, J., concur.

OPINION

RINER, District Judge.

The record in this cause discloses that Lulu Sorenson, hereinafter mentioned as the defendant, was by an information filed in the District Court of Niobrara County on August 30, 1923, charged with a violation of the provisions of Chapter 117 of the Session Laws of Wyoming, 1921, relating to the sale and possession of intoxicating liquors. The information is drawn with three counts, one charging an unlawful sale of intoxicating liquor on May 15, 1923, the second count charging an unlawful sale on June 15, 1923, and the last count charging an unlawful possession on May 31, 1923. This information, though signed by the county attorney of Niobrara county, was not verified by him. The usual form of oath attached to the information was filled out and signed by the attorney, but the jurat clause was not executed by the clerk of the district court in the space left for his signature and the court seal.

Defendant was arrested on a bench warrant issued upon this information, and, according to court entry on the bar docket, on September 4, 1923, "Defendant in open Court waived formal arraignment and entered a plea of not guilty." This plea was not endorsed on the information. The case proceeded immediately to trial.

Instruction No. 2 given the jury by the court specifically set out the three counts of the information, and then concluded, "To this information the defendant has entered a plea of not guilty, which plea puts in issue every material allegation in the foregoing allegations of the three counts of the information. No objections or exceptions were made or saved to these instructions. The defendant being found guilty on all three counts, judgment and sentence was entered thereon, and review of the record of the cause is sought by this appeal.

The first proposition advanced by the defendant seems to be that she never pleaded to the information filed, as mentioned above, on August 30, 1923. Reference is made in her brief to a motion to quash and an order thereon which appear in the record, and it is insisted that her plea of "not guilty" was entered to an information filed in the cause on August 23, 1923. But the record now before this court does not at all support these contentions. It is true that the motion to quash and the order disposing of it refer to an information filed August 23, 1923, but no such information appears in this record. Only the information of August 30, 1923, is here. There being but the one information in the record, and the court's minutes in the cause showing waiver of formal arraignment and entry of a plea of "not guilty," it is clear the plea must be here regarded as entered to the information now before this court, and none other. This conclusion is made the more certain because of what has already been recited as appearing in two of the instructions given the jury when the cause was submitted to it. One of these instructions gave verbatim the three counts of the information filed August 30, 1923, and then stated that defendant had pleaded not guilty to it. The defendant evidently considered these instructions correct as no complaint is made of them.

It is argued that the fact that the information was not sworn to by the county attorney and that defendant's...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT