State v. Wengren

• Citation: 286 P. 102,156 Wash. 153
• Decision Date: 28 March 1930
• Docket Number: 22258.
• Parties: STATE v. WENGREN.
• Court: United States State Supreme Court of Washington

286 P. 102

156 Wash. 153

STATE v. WENGREN.

No. 22258.

Supreme Court of Washington

March 28, 1930

Department 2.

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

E. A Wengren was convicted of the misdemeanor of the possession of intoxicating liquor as a subsequent offender, and he appeals.

Affirmed.

Anderson & Richards, of Everett, for appellant.

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

HOLCOMB, J.

Appellant was found guilty and judgment entered against him in the lower court upon a misdemeanor charging also a previous conviction of a misdemeanor, of which the jury found him guilty, from which he appeals.

The information under which he was convicted is as follows:

'He the said E. A. Wengren, in the County of Snohomish, State of Washington, on or about the 18th day of December, 1928 did wilfully and unlawfully have in his possession a quantity of intoxicating liquor other than alcohol, to-wit: about one pint and one half of moonshine whisky, one half pint of gin and nineteen quarts of beer;

'He, the said E. A. Wengren, was, on the 31st day of January, 1928, convicted of the unlawful possession of intoxicating liquor, in the Justice's Court of Everett Precinct, Snohomish County, Washington.'

The first error urged by appellant is that the court erred in overruling his demurrer to the information.

His contention is that Rem. Comp. Stat. § 7339 has been repealed or superseded.

Section 7339, among other things, provides for an increased punishment for the second conviction of any offense for which no specific penalty is provided. Section 7328, defining the crime of possession, provides no specific penalty, but the penalty for possession must be found in section 7338, which provides for a fine of not more than $250 or imprisonment in the county jail for not more than ninety days, or both, for the conviction of the violation of the provisions of the act for which no specific punishment is prescribed. This information is based upon section 7339.

We have held that sections 7338 and 7339 were enacted as amendments to the original intoxicating liquor prohibition act; that they are both parts of the same act; that the second conviction provision of section 7338 is special as to offenses therein specified, and that the third provision of section 7339 is applicable to all three convictions of violation of the act. State v. Powell (Wash.) 279 P. 573.

Although that case involved a third conviction, the decision of this court that sections 7338 and 7339 are amendments to the original intoxicating liquor prohibition act decides the contention of appellant that section 7339 had been repealed, adversely.

We have further held, which sustains the information here, that it is the duty of the prosecuting attorneys to allege prior convictions, even though such prior convictions could not affect the sentence to be imposed under our statute. State v. Brames (Wash.) 282 P. 48; State v. Thompson (Wash.) 283 P. 182.

Appellant assigns errors, also, in submitting the form of verdict following the information and the charge as made and allowing testimony of the former conviction to go to the jury as a part of the state's case.

These errors, also, under the foregoing considerations, must be decided adversely to appellant.

The evidence for the state showed that a deputy sheriff went to the premises occupied by appellant on December 18, 1928, concealed himself near the house, saw appellant come out of his house, go back of the house with a flash-light and return to the house with several bottles of beer. A short time later, appellant was seen by the deputy sheriff to go to a woodshed, take something into the house, and when the deputy sheriff followed him into the house he found two-thirds of a pint of whisky and half a pint of gin in a box in the kitchen. In the bedroom, under a quilt and coat, on the pillow, a pint of whisky in a bottle was found. A pitcher and four or five glasses sat on the table when the deputy entered, and four other parties were in the house besides appellant whom the deputy sheriff had seen arriving. The sheriff was called and he came out to the place in about an hour, arrested appellant, took the above-mentioned liquor and articles into his possession, took appellant to jail where he remained all night. The next morning the deputy sheriff returned to the premises and found seventeen or eighteen bottles of beer in the place where he had seen appellant go with a flash-light the evening previous, just back of the house. The evidence showed that the place where the beer was found was some three hundred feet distant from the house between appellant's house and the county road.

Appellant complains of the admission in evidence of the bottles of beer found by the deputy sheriff the next day when appellant was not on the premises, but was in jail.

The evidence above mentioned strongly indicated that the place where appellant went on the evening before was a cache for the beer, and, notwithstanding the distance from his house where it was situated, he was connected with the cache by the evidence. The evidence was therefore properly admitted.

Appellant assigns error in the ruling of the court in admitting in evidence statements made by the deputy sheriff in the presence of appel...