State v. White

• Decision Date: 23 April 1921
• Citation: 33 Idaho 697,197 P. 824
• Parties: STATE, Respondent, v. JOHN WHITE, Appellant
• Court: Idaho Supreme Court

197 P. 824

33 Idaho 697

STATE, Respondent, v. JOHN WHITE, Appellant

Supreme Court of Idaho

April 23, 1921

UNLAWFUL POSSESSION OF INTOXICATING LIQUOR-FAILURE TO PRESERVE EXCEPTIONS-INSTRUCTIONS-ALLEGED ENTRAPMENT OF DEFENDANT-EVIDENCE.

1. Assignments of error involving the action of the trial court in overruling motion to quash the information, demurrer to the information and objections to the introduction of testimony, and in denying motion in arrest of judgment, are not reviewable upon appeal when no exceptions thereto were taken or preserved in a bill of exceptions.

2. Instructions given by the court of its own motion, to which no exceptions were taken or preserved in a bill of exceptions, are not reviewable on appeal.

3. Held, under the facts in this case the court did not err in overruling appellant's motion that the court advise the jury to acquit appellant.

4. The record in this case fails to disclose by competent evidence any attempt on the part of the sheriff or his deputies to lure appellant into the commission of the offense for which he was convicted, and error cannot be predicated upon the refusal of the court to give appellant's requested instructions thereon.

5. The unlawful possession of intoxicating liquor was a crime under the statutes of this state at the time appellant was convicted thereof.

6. Where there is a substantial conflict in the evidence in a criminal case and there is sufficient competent evidence to sustain the verdict of the jury, such verdict will not be disturbed on appeal.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

Appellant was convicted of the crime of unlawfully possessing intoxicating liquor. Affirmed.

Affirmed.

Eustace & Groome, for Appellant.

The defendant cannot be held where he was entrapped into the commission of the alleged offense by officers of the county. (Wilcox v. People, 17 Colo. App. 109, 67 P. 343; People v. Braisted, 13 Colo. App. 532, 58 P. 796; State v. Hull, 33 Ore. 56, 72 Am. St. 694, 54 P 159; People v. Collins, 53 Cal. 185; Speiden v State, 3 Tex. App. 156, 30 Am. Rep. 126; State v. Dougherty, 88 N.J.L. 209, Ann. Cas. 1917D, 950, 96 A. 56, L. R. A. 1916C, 991; Connor v. People, 18 Colo. 373, 36 Am. St. 295, 33 P. 159, 25 L. R. A. 341; People v. Murphy, 93 Mich. 41, 52 N.W. 1042, Roberts v. Territory, 8 Okla. 326, 57 P. 840; United States v. Whittier, 5 Dill. 35, F. Cas. No. 16,688; United States v. Matthews, 35 F. 890, 891, 1 L. R. A. 104; United States v. Adams, 59 F. 674; Saunders v. People, 38 Mich. 218.)

Roy L. Black, Attorney General, and Alfred F. Stone and James L. Boone, Assistants, for Respondent.

The appellate court will not consider any error committed by the trial court in granting or refusing to set aside an indictment or information, allowing or disallowing a demurrer to an indictment or information, or in granting or refusing a motion in arrest of judgment when no exception to the order of the trial court is saved in the record. (Sec. 9008, C. S.; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Ray, 32 Idaho 363, 182 P. 857.)

An exception to an order of the court admitting or excluding evidence must be saved in order to have such ruling reviewed on appeal. (Sec. 9011, C. S.; People v. Kuok Wah Choi, 2 Idaho 90, 6 P. 112; State v. Ray, supra.)

Objections to instructions given by the court upon its own motion must be preserved by a bill of exceptions in order to be reviewed upon appeal. (Sec. 9012, C. S.; People v. Walter, 1 Idaho 386; People v. O'Callaghan, 2 Idaho 156, 9 P. 414; State v. Suttles, 13 Idaho 88, 88 P. 238; State v. Peck, 14 Idaho 712, 95 P. 515; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

The giving or refusing to give the instruction provided for in sec. 8963, C. S., advising acquittal of the defendant, is in the discretion of the trial court and is not reviewable upon appeal. (State v. Haverly, 4 Idaho 484, 42 P. 506; State v. Murphy, 29 Idaho 42, 156 P. 908.)

The fact that a crime has been consented to by an officer or even induced by one for the purpose of entrapping defendant in the commission thereof is no defense. (Hummelshime v. State, 125 Md. 563, Ann. Cas. 1917E, 1072, 93 A. 990; State v. Abley, 109 Iowa 61, 77 Am. St. 520, 80 N.W. 225, 46 L. R. A. 862; Davis v. State, 70 Tex. Cr. 524, 158 S.W. 288; People v. Liphardt, 105 Mich. 80, 62 N.W. 1022.)

The refusal to give requested instructions is not error when the essence and substance thereof is embodied in other instructions given by the court. (Breshears v. Callender, 23 Idaho 348, 131 P. 15; State v. O'Neil, 24 Idaho 582, 135 P. 60.)

It is not necessary to allege or prove that intoxicating liquors were possessed "for beverage purposes." Chapter 11 of 1915 Session Laws, prohibiting the possession of intoxicating liquors, has remained in full force and effect at all times since its enactment. (In re Crane, 27 Idaho 671, 151 P. 1006, L. R. A. 1918A, 942; affirmed as to federal question, Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304; In re Baugh, 30 Idaho 387, 164 P. 529.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was convicted of the crime of unlawfully possessing intoxicating liquor. This appeal is from the judgment of conviction.

From the record it appears that a quantity of intoxicating liquor, in the custody of the sheriff, was kept in a vault in the basement of the Canyon county courthouse; that a portion of this liquor was found to be missing about March 18, 1918; that one Totterdell, a prisoner in the county jail, had been seen coming out of the basement with a bundle under his arm; that a cache of liquor was subsequently discovered near the jail; that it was not disturbed by the sheriff or his deputies; that appellant and Totterdell were friends and the former frequently visited the latter at the jail; that on the evening of March 18th appellant and one Colvard were in the vicinity of the jail, were seen near the place where the liquor was cached and shortly thereafter were arrested. The sheriff testified that immediately prior to the arrest he saw appellant take a bottle out of his pocket and one out of Colvard's pocket and throw them into a near-by ditch. Andrews corroborated this testimony, and Nichols testified that he saw the two bottles in the ditch immediately thereafter. When these bottles were taken out of the ditch they were found to contain whiskey and were identified as two of the bottles of whiskey that were in the cache. Appellant and Colvard testified to the contrary.

Appellant assigns and relies upon eleven assignments of error. Assignments Nos. 1, 2, 3 and 11 involve the action of the trial court in overruling appellant's motion to quash the information, in overruling the demurrer to the information, in overruling objections to the introduction of testimony, and in denying appellant's motion in arrest of judgment. None of these errors can be reviewed upon this appeal for the reason that no exceptions thereto were taken or saved in a bill of exceptions. (C. S., secs. 9008, 9011; State v. Ford, ante, p. 689, 197 P. 558; State v. Ray, 32 Idaho 363, 182 P. 857; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Baker, 28 Idaho 727, 156 P. 103; State v. McGinnis, 12 Idaho 336, 85 P. 1089; State v. Schieler, 4 Idaho 120, 37 P. 272; State v. Reed, 3 Idaho 754, 35 P. 706; People v. Kuok Wah Choi, 2 Idaho 90, 6 P. 112.)

Appellant's assignments Nos. 6, 7 and 8 attack certain instructions given by the court of its own motion, to which no exceptions were taken or saved in a bill of exceptions. The instructions are, therefore, not subject to be reviewed on appeal. (C. S., sec. 9012; State v. Ford, ante, p. 689; 197 P. 558; State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Peck, 14 Idaho 712, 95 P. 515; State v. O'Brien, 13 Idaho 112, 88 P. 425; State v. Suttles, 13 Idaho 88, 88 P. 238; People v. O'Callaghan, 2 Idaho 156, 9 P. 414; People v. Walter, 1 Idaho 386.)

Assignment No. 4 involves the action of the court in overruling appellant's motion that the court advise the jury to acquit appellant. Under the facts in this case, the court did not err in overruling the motion.

Assignment No. 5 is directed to the refusal of the trial court to give appellant's requested instructions Nos. 7 to 12, inclusive.

Appellant's requested instruction No. 12 was fully covered in the court's instructions, and instructions 7 to 11 inclusive, were offered upon the theory...