State v. Stewart

• Decision Date: 12 September 1928
• Docket Number: 5047
• Citation: 46 Idaho 646,270 P. 140
• Parties: STATE, Respondent, v. FRED STEWART, Appellant
• Court: Idaho Supreme Court

270 P. 140

46 Idaho 646

STATE, Respondent, v. FRED STEWART, Appellant

No. 5047

Supreme Court of Idaho

September 12, 1928

STATUTES-TITLE-CRIMINAL LAW-FURNISHING LIQUOR TO MINORS-INFORMATION-SUBSEQUENT INDORSEMENT OF WITNESSES' NAMES-INSTRUCTIONS.

1. Laws 1925, chap. 171, adding section 2621a to C. S., chap. 125 art. 2, making it a felony to sell, give or furnish intoxicating liquor to a minor, is a new section of said chapter 125, article 2, complete within itself, and is embraced within title of said article 2, as against contention that it was intended to be added to section 2621 and therefore void, under Const., art. 3, sec. 16, because subject thereof is not embraced in title of section 2621.

2. Defendant, convicted of giving and furnishing intoxicating liquor to a minor, in violation of section 2621a, added to C S., chap. 125, art. 2, by Laws 1925, chap. 171, making such act a felony, held properly sentenced under section 8085 prescribing punishment for felonies.

3. Where thirty-three days after filing information, and about two weeks prior to trial, prosecuting attorney had name of additional witness indorsed on information, held that, in absence of claim that defendant was surprised thereby, he would not have ample time to prepare for trial, or that he was in any way prejudiced, appellate court will not determine sufficiency of the showing in support of prosecuting attorney's motion, under C. S., sec. 8810.

4. An instruction which is inaccurate or incomplete may often be cured by a correct statement of the law in another instruction; but an instruction which places on defendant the burden of establishing his innocence is not cured by instruction which states rule correctly.

5. In prosecution for furnishing intoxicating liquor to a minor, in violation of section 2621a, added to C. S., chap. 125, art. 2, by Laws 1925, chap. 171, instruction to acquit if, from evidence beyond reasonable doubt, jury finds defendant did not give liquor to minor, but that minor took liquor from defendant's hand, without defendant's consent, and without any intention of defendant that she should do so, held erroneous, under section 8944, as depriving defendant of presumption of innocence, and imposing on him burden of establishing his innocence beyond reasonable doubt.

6. Error in instruction, depriving defendant of presumption of innocence, under C. S., sec. 8944, and imposing on him burden of establishing beyond reasonable doubt his innocence of charge of furnishing intoxicating liquor to minor, in violation of section 2621a, added to C. S., chap. 125, art. 2, by Laws 1925, chap. 171, held prejudicial, and not cured by other correct instructions contradictory thereto, and which therefore tended to confuse and mislead the jury.

7. Where there was direct conflict in the evidence on issue to which erroneous instruction imposing on defendant burden of establishing his innocence beyond reasonable doubt related, so that, if instruction had been omitted, jury might not have been convinced of defendant's guilt beyond reasonable doubt, even though it was not satisfied of his innocence beyond reasonable doubt, rule that judgment should not be reversed for erroneous instruction, if evidence of defendant's guilt is satisfactory and result could not have been different had instruction been omitted, did not apply.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Charles L. Heitman, Judge.

Fred Stewart was convicted of giving and furnishing intoxicating liquor to a minor. Reversed and remanded for new trial.

Reversed and remanded, with directions.

Lynn W. Culp, for Appellant.

In the cause of State v. Crea, 10 Idaho 93, 76 P. 1013, the court, speaking through Sullivan, C. J., in referring to C. S., sec. 8810, used the following language:

"Said section provides, among other things, that the prosecuting attorney must indorse on the information the names of witnesses known to him at the time of filing the same. It also provides that other names may be indorsed thereon as the court may rule, or otherwise prescribe. Under the latter provision before the court allows the name of the witness to be indorsed thereon, some showing should be made, by affidavit or otherwise, why it was not indorsed thereon at the time of the filing the information."

And it appearing that a satisfactory showing why the names of the additional witnesses had not been indorsed on the information as provided by law, the rule of the trial court permitting the names to be indorsed thereon was held to be reversible error.

In the case of State v. Barber, 13 Idaho 65, 88 P. 418, it was held to be error to permit such additional witnesses to testify without their names being first indorsed on the indictment or information.

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

It is not error for the court to permit a witness' name to be indorsed upon the information shortly prior to the trial, where appellant makes no showing that by such action he was surprised or suffered any disadvantage or was prejudiced in any way. (State v. Allen, 20 Idaho 263, 117 P. 849; State v. Steen, 29 Idaho 337, 158 P. 499; State v. Nolan, 31 Idaho 71, 169 P. 295; State v. McGann, 8 Idaho 40, 66 P. 823.)

The title to 1915 Sess. Laws, chap. 11, was broad enough to include the subject matter of the amendatory act of Laws 1925, chap. 171. Such amendatory act was germane to the original act. (State v. Pasta, 44 Idaho 671, 258 P. 1075; State v. Bowman, 40 Idaho 470, 235 P. 577, 1915 Sess. Laws, chap. 11; 1925 Sess. Laws, chap. 171; C. S., sec. 2621.)

All instructions should be construed together. (State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Grimmett, 33 Idaho 203, 193 P. 380; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Dubis, 39 Idaho 376, 227 P. 384; State v. Cosler, 39 Idaho 519, 228 P. 277.)

WM. E. LEE, C. J. Budge, Givens and Taylor, JJ., concur.

OPINION

WM. E. LEE, C. J.

--Fred Stewart was convicted of "giving and furnishing intoxicating liquor to a minor," in violation of chap. 171, 1925 Sess. Laws, and appeals from the judgment, as well as from an order denying a motion in arrest of judgment and an order denying a motion for new trial.

Chap. 171, 1925 Sess. Laws, reads as follows:

"Be it enacted by the legislature of the state of Idaho:

"Section 1. A new section is hereby enacted and added to Article 2, of Chapter 125 of the Idaho Compiled Statutes, to be designated as Section 2621--A and to read as follows:

"Section 2621--A. Any person who sells, gives or furnishes or causes to be sold, given or furnished, intoxicating liquor to any minor is guilty of a felony."

It is urged that C. S., sec. 2621-A, is added to and made a part of C. S., sec. 2621; that the title to section 2621 does not embrace the subject expressed in section 2621--A; and that the latter enactment is void in that the subject thereof is not embraced in the title of section 2621. (Const., art. 3, sec. 16.) This argument is fallacious. By chapter 171, 1925 Sess. Laws, it was not intended to add a new section to C. S., sec. 2621, but, as stated in its title, "a new section is hereby enacted and added to article 2 of chapter 125 of the Idaho Compiled Statutes. . . ." The fact that the section is designated section 2621--A does not justify an inference that it was intended to be a part of section 2621. Section 2621--A is a new section of article 2, chapter 125, and is complete in itself. The title of article 2, chapter 125, enacted as chapter 11, 1915 Sess. Laws, is amply sufficient to embrace within its purview the subject matter of section 2621--A. (State v. Pasta, 44 Idaho 671, 258 P. 1075.)

Appellant was properly sentenced under the provisions of C. S., sec. 8085. (State v. Payton, 45 Idaho 668, 264 P. 875.)

Some thirty-three days after filing the information, and approximately two weeks prior to the trial, over objection the prosecuting attorney had the name of one Conrad Smick indorsed as a witness on the information. It is contended that the showing made by the prosecuting attorney in support of the motion was entirely insufficient. C. S., sec. 8810, provides, inter alia, that the prosecuting attorney shall indorse on the information the names of the witnesses known to him at the time it is filed; and at such time before trial as the court may rule or prescribe he shall indorse the names of other witnesses as shall then be known to him. This court has held that the purpose of these provisions is to inform ...