State v. Thompson

• Decision Date: 17 December 1929
• Docket Number: 21687.
• Citation: 154 Wash. 663,283 P. 182
• Parties: STATE v. THOMPSON.
• Court: Washington Supreme Court

283 P. 182

154 Wash. 663

STATE v. THOMPSON.

No. 21687.

Supreme Court of Washington

December 17, 1929

Department 1.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Edward Thompson was convicted of possessing intoxicating liquor with intent to sell it, and he appeals. Affirmed.

Anderson & Richards and Earl W. Husted, all of Everett, for appellant.

Charles R. Denney, of Everett, for the State.

PARKER J.

The defendant, Thompson, was, by information filed by the prosecuting attorney of King county in the superior court for that county, charged with the offense of unlawfully having in his possession intoxicating liquor with intent to sell the same, and further charged with having been formerly convicted of the offense of unlawful possession of intoxicating liquor. His trial in the superior court for that county, sitting with a jury, resulted in a verdict finding him 'guilty of possession of intoxicating liquor with intent to sell the same,' and also finding that he had prior thereto, been once convicted by a judgment of that court of the offense of 'unlawful possession of intoxicating liquor.' Final judgment was rendered against him upon the first finding of the verdict alone. From this judgment of the court rendered against him, Thompson has appealed to this court.

Counsel for the state moved to strike from the record of the cause appellant's proposed statement of facts for want of its timely service and filing in the case in the superior court. Final judgment was rendered against appellant on March 29 1928; so the period within which he was required to take his appeal then commenced to run, and at that time also the 90-day period within which he was required to serve and file his proposed bill of exceptions or statement of facts commenced to run. Rules VII and X, adopted January 14, 1927 140 Wash. pp. xxxix, xlii. Appellant's proposed statement of facts was not served or filed until more than nine months thereafter; it being served and filed on January 16, 1929. Thus it becomes plain that the statement of facts must be stricken and not considered as properly a part of the record of the cause. It is so ordered. See State v. Sholund (Wash.) 279 P. 591, and our former decisions therein noticed. There is no other bill of exceptions or statement of facts in the record of the cause before us, so we are limited in our present inquiry to such claim of error as is disclosed by the record apart from any bill of exceptions or statement of facts.

It is contended in behalf of appellant that the trial court erred to his prejudice in allowing to be brought into the case by the information and evidence the question of his prior conviction of unlawful possession of intoxicating liquor; the argument being that such charge is not proper to be made or proven accompanying a charge of unlawful possession of intoxicating liquor with intent to sell the same. It seems plain to us that appellant was by this information charged with violating both of the following provisions of sections of Remington's Compiled Statutes:

Section 7309: 'It shall be unlawful for any person to * * * keep any intoxicating liquor, with intent to sell, * * * the same. * * *'

Section 7328: 'It shall be unlawful for any person * * * to have in his possession any intoxicating liquor. * * *'

We omit certain stated exceptions in these sections with which we are not here concerned. It is plain under these provisions that the offense of unlawful possession is included in the offense of unlawful possession with intent to sell. There is no specifically prescribed punishment for unlawful...