State v. Sullivan

• Citation: 97 Wash. 639,166 P. 1123
• Decision Date: 14 August 1917
• Docket Number: 14102.
• Parties: STATE v. SULLIVAN.
• Court: United States State Supreme Court of Washington

166 P. 1123

97 Wash. 639

STATE v. SULLIVAN.

No. 14102.

Supreme Court of Washington

August 14, 1917

Department 2. Appeal from Superior Court, Lewis County; C. M. Easterday Judge.

George Sullivan was convicted of the unlawful sale of intoxicating liquors, and he appeals. Affirmed.

C. D. Cunningham, of Centralia, and Forney &amp Ponder, of Chehalis, for appellant.

W. H Cameron, of Centralia, and Floyd M. Hancock, of Chechalis for the State.

HOLCOMB J.

The first ground upon which appellant seeks a reversal of the judgment upon verdict convicting him is that the court erred in overruling his demurrer to the information. The information charged him as follows:

'* * * Did then and there willfully and unlawfully sell one bottle of spirituous intoxicating liquor, being about one quart in quantity, to one Wm. Estep, which said intoxicating liquor, so sold, was capable of being used as a beverage.'

Our statute (§ 6262-4, Rem. Code) prohibits the sale of any intoxicating liquor. Section 6262-2, Id., defines the phrase 'intoxicating liquor' to 'include whisky, brandy, gin, rum, wine, ale, beer, and any spirituous * * * liquor.' The information charged the appellant with selling a prohibited liquor, 'spirituous intoxicating liquor,' and added that it was liquor capable of use as a beverage. The charge was substantially in the language of the statute, and was so stated that a man of common understanding could easily determine the nature of the offense with which he was charged. This was all that was essential. State v. Wright, 9 Wash. 96, 37 P. 313; State v. Holedger, 15 Wash. 443, 46 P. 652; State v. Nelson, 39 Wash. 221, 81 P. 721.

'The class or species of the liquor sold is not a material ingredient of the offense, and the defendant is not entitled to more detailed information on this point, if the other allegations of the indictment described the particular transaction with sufficient certainty to identify it.' Black, Intoxicating Liquors, § 467; Callahan v. State, 2 Ind. App. 417, 28 N.E. 717.

This determination disposes also of appellant's fourth claim of error, that the court erred in admitting in evidence a bottle of liquor and evidence that it was whisky or spirituous, and intoxicating.

The next claim is based upon the denial of a challenge by appellant to a juror. The juror, Mrs. Schmid, testified on voir dire to some acquaintance with the deputy prosecuting attorney, some confidence in his ability and integrity, and a belief in the prohibition law. She apparently did not thoroughly understand many words and phrases used by court and counsel, but she displayed a fairly comprehensive knowledge of ordinary English, such as laymen in ordinary walks of life commonly use. The prosecuting attorney was not on trial, and this juror evinced no special partiality for him or for his side of the case as such. She stated that she would not believe him rather than others when he argued to the jury. She had an undoubted right to favor the prohibition law exactly as she might favor any other criminal law, and the fact that a prospective juror favors any penal statute is no evidence that such juror is prejudiced against any person accused of violating that law. In fact, the answers of this juror convince that she was a very unbiased juror. The trial judge, who saw and heard her testify, evidently so believed, and exercised his undoubted discretion as trier of that fact in denying the challenge for cause. We can see no abuse of discretion therein. State v. Boyce, 24 Wash. 514, 64 P. 719; State v. Croney, 31 Wash. 122, 71 P. 783; State v. Montgomery, 57 Wash. 192, 106 P. 771.

The court permitted the state to show certain admissions of appellant concerning the offense charged against him to the officers who had him in custody. It is urged that this was error because it was not first shown that the appellant was not under the influence of fear produced by threats when he made them. The testimony of the prosecution as a whole shows, however, that the alleged admissions were made freely and voluntarily; that, in the absence of a counter showing, is all-sufficient, covering the preliminary essential and negativing the idea of being made under fear produced by threats. State v. Mann, 39 Wash. 144, 81 P. 561; State v. Washing, 36 Wash. 485, 78 P. 1019; State v. Wilson, 68 Wash. 464, 123 P. 795.

Error is assigned upon certain statements of the court as being prejudicial comment on the evidence. When the sheriff of the county, a witness for the prosecution, was upon the stand, he testified as to an examination of the appellant by the prosecuting attorney in the presence of the witness and other witnesses, and that the following, among other things, occurred: Studebaker (prosecuting attorney) quizzed the victim. He talked to him there. He (Studebaker) said he was not particular about arresting people of his (Sullivan's) kind, but was particular to get the man who furnished the liquor; said he would be inclined to be lenient with him if he (Sullivan) wanted to tell him of his own free will where he got the liquor, but he told him he did not need to talk to him unless he wanted to.

'Q. Did he say anything about what Judge Rice would do? A. No, he didn't say anything about what Judge Rice would do at all. Q. Didn't he tell him, if he did not state from whom the liquor came that Judge Rice would give him from 30 to 60 or 90 days, and would not give him a fine at all? A. No, he didn't say Judge Rice would do that. He told him under the law that could be done; he could do that. Q. Well, what was there said to him about that? A. Why, he told him, he says, 'If you don't want to tell, of course there is no leniency coming to you.' He says, 'I will have to prosecute you, and you will get whatever the judge is mind to give you,' and he told him--he didn't say 60 days; he said 30 to 90 days.'

There was some further testimony and some colloquy between counsel for appellant and the prosecuting attorney and the court, counsel for appellant insisting that the evidence above quoted showed that a threat was made to the appellant which upon its face disqualified the evidence of any admissions on the part of appellant. Objections were made to the court making any statement in regard to what the evidence was. The court said:

'I will say that I do not regard any testimony that has come in as substantially a threat.

'Mr. Forney: We

take exception to your honor's statement to the jury. He stated that Mr. Foster stated that the court would give him from 30 to 90 days in jail.

'The Court: No, he did not say that. He said he told him what the penalty would be; said Studebaker told him the penalty would be 30 to 90 days in jail. 'Mr. Forney: We take exception to your honor's statement as a comment on the evidence.

'The Court: I will sustain the objection.'

It is obvious that what the court stated the evidence was conformed exactly to the evidence in the record. It is also obvious that the evidence did not, in any way, show any threat made by the prosecuting attorney, but merely a statement as to what the penalty of the law might be in case of a conviction for the offense. The court committed no error...