State v. Telford
| Decision Date | 30 April 1936 |
| Docket Number | 5653 |
| Citation | 89 Utah 22,56 P.2d 1362 |
| Court | Utah Supreme Court |
| Parties | STATE v. TELFORD |
Appeal from District Court, First District, Cache County; Melvin C Harris, Judge.
Bryant Telford was convicted of being a persistent violator of the liquor law, and he appeals.
AFFIRMED.
Karl V King and Roy F. Tygesen, both of Salt Lake City, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
The defendant was on November 19, 1934, convicted of being a persistent violator of the liquor law known as title 46, R. S. Utah 1933 (46-0-1 et seq.). The points in the case all revolve about the following facts: The fresh charge, which was coupled with an old conviction had on March 10, 1930, in order to support the allegation of persistent violator, was based on an alleged possession of 44 pints of whisky, 23 pints of gin, and 6 pints of brandy found in his possession on July 7, 1934. He was found guilty on these facts of persistent violation.
It appears from a statement of counsel that on August 23, 1934, defendant was also convicted of having possession of liquor which was found in his possession on July 2, 1934. He contends that the liquor which was taken from him on July 7th was in his possession on July 2d but not confiscated by the officers, and that his conviction for the liquor which the officers took on July 2d stands as a conviction for possessing all of the liquor then in his possession; that by returning and taking a remainder on the 7th the officers cannot predicate a new charge; that he was already convicted of the possession of all of that liquor by the jury's verdict of August 23d; that, therefore, he should prevail on a plea of former conviction. He purports to assign four errors, argues five in his brief, but in reality there is only one assignment which meets the requirements. This is: "That the court erred in not permitting or having the pleas of defendant stated to the jury at the beginning of the trial, as is required by section 105-32-1, paragraph 1, of the Revised Statutes of Utah 1933." The record of what transpired in the courtroom will best show the situation in that regard:
Counsel: "Just for the purpose of the record, may the record be clear as to just how this record now stands, as to his plea."
Court:
Counsel: "May the record also show the plea of former judgment of conviction and also the plea of once in jeopardy."
Court:
At this point a panel of eight jurors was drawn, examined and sworn as a trial jury.
Counsel:
Court:
The information was then read to the jury by the clerk.
Court (to the jury): "To that information the defendant has entered a plea of not guilty, and that puts in issue all the material allegations of the information."
Counsel for the state then made his opening statement, whereupon counsel for defendant proceeded to state to the jury that he would offer evidence which would "show that on the 2nd day of July, 1934, the officers went to the house," at which time state's counsel objected on the ground that it was immaterial. The jury was excused and counsel for the defense stated: "Our position on that matter, Your Honor, is this, that we have placed in issue here, by reason of our plea of former conviction--and I would like at this time to take exception to the failure of the clerk to state the plea to the jury, as it appears in the record." The court then said, "I will restate that plea," to which counsel remarked, "You will restate that?" The court answered, "Yes." Counsel for defendant then continued: "Our position is, by reason of that plea, that places in issue this question of a former conviction, and that, therefore, we are entitled to go into the transaction which occurred on the second day of July, and we are entitled to come in and show that the defendant has been convicted of that offense." The court, after argument, sustained the objection of state's counsel to the matter which defendant's counsel had attempted to include in his statement to the jury as indicated above.
We must treat the plea as having been made. It was offered, and from what the court said, as above recited, it appears that the court accepted the plea. No objection was made that it was not timely. In fact, when defendant was arraigned on August 11th it was not available to him because it was not until August 23d that he was convicted of possession of the liquors seized on July 2d. But evidently the plea was not entered on the minutes as required by section 105-25-2, R. S. 1933. But we shall treat it as if it were present in the case as a plea entered by defendant, because the defendant cannot be charged with the omission to register the plea in the minutes.
As far as the record shows, this plea was never read or stated to the jury, and since counsel for defendant made objection to this omission we cannot indulge the presumption that it was read or stated. Of this defendant complains in the aforestated assignment of error. We think it was error not to state this plea to the jury. Section 105-32-1, R. S. 1933, subsec. (1), reads:
The word "must" is used. The jury must be informed of the plea. If that is substantially done it suffices, but in this case the jury was not definitely informed of that plea. It is true that if the veniremen were in the courtroom the proceedings indicated above, up to the point where the jury was drawn, examined, and sworn, may have been heard by all prospective jurors. But this is too conjectural. It is also true that after the jury was sworn and in their presence, counsel for the defendant stated to the court that the record did not show the date of the prior conviction. The statement was to the court in order to complete the record. The jury would in all probability not have gleaned what was meant and, not being presumed to know about pleas of former conviction, could not be expected from the suggested addition to such plea (not directed to them) to infer that there was such plea. In short, there is nothing which transpired before the jury from which it could be definitely said that knowledge was brought home to the jury of the existence of a plea of former conviction. That is the purpose of section 105-32-1, subsec. (1). The proceedings in the courtroom in this regard did not amount to a substantial compliance as in the cases of Donehy & Prather v. Commonwealth, 170 Ky. 474, 186 S.W. 161, 3 A. L. R. 1161, and People v. Sprague, 53 Cal. 491. The defendant took timely objection to the failure to state or read said plea to the jury. The following cases hold a substantial compliance with a statute reading as does ours to be mandatory: Donehy & Prather v. Commonwealth, supra; Galloway v. Commonwealth, 5 Ky. L. Rep. 213, 11 Ky. Op. 951; Farris v. Commonwealth, 111 Ky. 236, 63 S.W. 615; Hendrickson v. Commonwealth, 64 S.W. 954, 23 Ky. L. Rep. 1191; State v. Chambers, 9 Idaho 673, 75 P. 274; State v. Crea, 10 Idaho 88, 76 P. 1013; Wilkins v. State, 15 Tex. Ct. App. 420; White v. State, 18 Tex. Ct. App. 57; Barbee v. State, 32 Tex. Crim. 170, 22 S.W. 402; Hearne v. State (Tex. Cr. App.) 58 S.W. 1009; Essary v. State, 53 Tex. Crim. 596, 111 S.W. 927; State v. Ralston, 139 Iowa 44, 116 N.W. 1058.
But under all the facts of this case, was the omission to read or state the plea prejudicial to the defendant? The record shows, through a tender of evidence in the absence of the jury, that the defendant intended to support such plea with testimony only of the fact that the liquor seized on July 7th was a part of a larger quantity in his possession on July 2d when the officers also then seized liquor found in his possession. If the evidence would not have been material to support said plea and could not be admitted, the failure to read a plea which would have been totally without evidence to support it cannot be prejudicial. Its presence in such case would have confused rather than clarified the issues before the jury.
The defendant offered the files of the case which resulted in his conviction on August 23d for liquor seized on July 2d. In the argument it was admitted that the liquor seized on July 7th was in defendant's possession on July 2d but had not been taken by the officers. The question was whether the conviction based on the liquor seized on July 2d covered the possession of all the liquor which defendant then had in his possession which the officers might have seized...
To continue reading
Request your trial