State v. Williams

• Decision Date: 08 May 1928
• Docket Number: 1468
• Citation: 38 Wyo. 340,266 P. 1056
• Parties: STATE v. WILLIAMS [*]
• Court: Wyoming Supreme Court

266 P. 1056

38 Wyo. 340

STATE v. WILLIAMS ^[*]

No. 1468

Supreme Court of Wyoming

May 8, 1928

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

M. N Williams was convicted of manufacturing and possessing intoxicating liquor, and he appeals.

Modified and Affirmed.

C. G Cypreansen, for defendant and appellant.

A bench warrant is the personal process of the Judge of the Court the clerk has no authority to issue bench warrants in vacation. Under the federal practice, a praecipe is required. Process in this case was insufficient. The point is not waived by announced readiness for trial, State v. Ritter, 3 Mo.App. 562; or by appearance, Town v. Collins, (Conn.) 82 A. 636; Sections 7432, 7475 C. S. govern criminal warrants; the principle of functus officio applies. No offense was charged against defendant. The Prohibition Law, Chap. 117, L. 1921, gives no penalty for possession of intoxicating liquor. Criminal statutes are strictly construed, Back v. Back, 148 Ia. 223; Wallace v. Walsh, (N. Y.) 25 N.E. 1076. Defendant's character as a law-abiding citizen is relevant and may be shown, 1 Wigmore on Evidence, 269. The court erred in excluding evidence of good character, 2 Bishop Crim. Proc., Sec. 1113; State v. Madison, (S. D.) 122 N.W. 647; State v. Brude, 151 Ia. 701; Friel v. State, 6 Okla. Cr. R. 532; Carney v. State, 232 P. 451; People v. Hoffman, 248 P. 504. The judgment authorized double punishment for the same offense; possession is only a separate stage of manufacture, Reynolds v. U.S., 280 F. 1. The evidence was insufficient to sustain the judgment of conviction, in fact it was as consistent with innocence as it was with guilt, and defendant was entitled to the benefit of the doubt, U. P. Coal Co. v. U.S., 173 F. 737; defendant's motion for arrest of judgment should be sustained.

W. O. Wilson, Attorney General, James A. Greenwood, Deputy Attorney General, and John Dillon, Special Assistant Attorney General, for plaintiff and respondent.

The arresting officer discovered defendant in possession of a still, which was in operation, and about two and one-half gallons of "moonshine" whisky; the chemical content of which was shown by the evidence to be whiskey. The foregoing facts were established by the evidence; the warrant served on defendant was issued in conformity with Section 7432 C. S. and was sufficient, State v. Krohne, 4 Wyo. 347; defendant waived exception to the warrant by appeal, and giving bail, 16 C. J. 310, 6 C. J. 952; its designation as a "bench warrant" is immaterial, 16 C. J. 310. It is contended that no specific penalty is provided by Chap. 117, L. 1921, for having possession of intoxicating liquor; the penalty is prescribed by Section 27. The point is covered in the case of Paige v. U.S., 278 F. 44. The rule is, that evidence of the character of a witness, for truth and veracity, is inadmissible unless he has been impeached, or his character assailed, 15 A. L. R. 1066; 33 A. L. R. 1220; Kirby v. State, 33 A. L. R. 1219. The accused may always adduce evidence of good character in respect to the trait involved in the specific charge on trial, but not evidence of general character in other respects, Abbot's Crim. Brief (3rd. Ed.) 572; State v. Beckner, 3 L.R.A. (N.S.) 535; Westbrooks v. State, (Miss.) 25 So. 491; Bachner v. State, 58 N.E. 742; there was no evidence that all of the whiskey in possession of defendant was liquor manufactured by him; the evidence showed that there was some liquor in a keg and also some liquor in process of manufacture dripping from the still into a small crock; it is possible that under the rule announced in Brown v. State, (Wyo.) 259 P. 810, the conviction on Count # 1, for possession, may not be sustained, but the evidence is quite clear in support of Count # 2 for the manufacture of intoxicating liquor.

Before KIMBALL and RINER, Justices, and ILSLEY, District Judge. KIMBALL and RINER, JJ., concur.

OPINION

ILSLEY, District Judge.

The defendant Williams was arrested, tried and convicted upon an information containing two counts, one of which charged possession and the other manufacture of intoxicating liquor.

Defendant complains that the motion to quash the warrant of arrest should have been sustained; that the warrant was a "bench warrant" and as such could only be issued by the court or by the court's order, and that inasmuch as it was issued by the clerk without an order of the court therefor, it was a bad warrant and not legally issued. Counsel in his brief devotes considerable space to discussing the common law bench warrant. It is true that the words "bench warrant" appear upon the face of the warrant of arrest. They may, however, be treated as surplusage, because it appears that the warrant was issued under the authority of the statute (Section 7432, Wyo. C. S. 1920), giving the clerk of the District Court authority to issue such a warrant. State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3. We think the warrant was good, and issued according to law.

Defendant next complains that no offense was charged in the information as to the possession of intoxicating liquor, contending that there is no penalty provided for such an offense in Chapter 117, Session Laws of 1921. Counsel for defendant evidently overlooked Section 27 of that Act as amended by Chapter 128, Session Laws of 1925, which provides:

"Any person * * * who * * * violates any of the provisions of this act for which offense a special penalty is not prescribed, shall upon conviction be fined for a first offense not less than two hundred dollars, nor more than one thousand dollars, or imprisoned not exceeding ninety days, or both; * * *."

Defendant asserts that the court erred in not permitting evidence of defendant's good character to be introduced. The trial court did not permit the introduction of such testimony for the reason, shown in the record, that no proper foundation was laid. The witness Tim Hurley was called, and stated he knew Williams three years, the witness living in Casper and the defendant living at Snyder, adjoining Salt Creek some forty miles distant. That the witness had met defendant about a dozen times, had never talked to anyone about the defendant, never heard his reputation discussed, or talked with anyone about it. Another witness, produced for the same purpose, showed no greater knowledge. We think the trial court was right in refusing to admit the testimony of the witnesses. Surely it was proper for the witnesses to so qualify themselves that their testimony on the subject of character would be proper testimony to be considered by the jury. We do not understand from the record that the defendant was refused the right to show his good character as a law-abiding citizen, but rather that the trial judge ruled that the witnesses offered were not qualified to testify on the subject. We think that the extent of the preliminary inquiry to show the knowledge of the witness is left to the sound discretion of the trial court.

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