State v. Winter

• Decision Date: 09 June 1955
• Docket Number: No. 9431,9431
• Parties: STATE of Montana, Plaintiff and Respondent, v. Portus Frank WINTER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 149

285 P.2d 149

129 Mont. 207

STATE of Montana, Plaintiff and Respondent, v. Portus Frank WINTER, Defendant and Appellant.

No. 9431.

Supreme Court of Montana.

June 9, 1955.

Seth F. Bohart, Bozeman, argued orally, for appellant.

Arnold H. Olsen, Atty. Gen., Harold L. Allen, County Atty., Bozeman, H. L. Luxan, Jr., Special Asst. Atty. Gen., argued orally, for respondent.

ADAIR, Chief Justice.

Portus Frank Winter was accused, tried by a jury, convicted and sentenced in the district court of Gallatin County, Montana, for selling beer to a seventeen-year old boy. This appeal is from the judgment of conviction and order denying Winter a new trial.

By information filed in the district court of Gallatin County, Montana, the defendant, Portus Frank Winter, was accused of the crime of misdemeanor in that said defendant, at Karst's Kamp on Highway 191 near Gallatin Gateway, in the County of Gallatin, State of Montana, on or about the 8th day of May 1953, did unlawfully sell to a specifically named boy then 'a minor of the age of seventeen (17) years, one bottle of beer. All of which is contrary to the form, force and effect of the Statute in such case, made and provided and against the peace and dignity of the State of Montana.' The information was signed by the county attorney and had the names of six witnesses for the state endorsed thereon.

The defendant Winter, accompanied by his counsel, appeared in open court,--waived the reading of the above information, a true copy whereof was then and there delivered to him--waived time in which to plead and entered a plea of not guilty.

Thereafter on duly noticed motion of the county attorney, over defendant's objections and after hearing oral arguments of counsel for both the state and the defendant thereon, the district court granted leave to endorse upon the information the name of Peter Karst as an additional witness for the state and also granted leave to amend the information by writing and inserting after the word 'beer' and before the word 'All' in the above quoted portion of the information the following italicized words, namely: 'the said Portus Frank Winter being then and there an employee of Peter F. Karst, said Karst being them and there a retail beer dealer licensed under the laws of the State of Montana.'

Defendant specified as error the action of the court in allowing the above amendments. The amendments were made well in advance of the trial. They caused no delay of the trial. There is no evidence of any bad faith on the part of the county attorney,--the defendant suffered no prejudice therefrom and we find no abuse of discretion on the part of the trial judge in allowing the amendments. R.C.M.1947, § 94-6207; State v. Calder, 23 Mont. 504, 507, 59 P. 903; State v. Biggs, 45 Mont. 400, 403, 123 P. 410; State v. Harkins, 85 Mont. 585, 281 P. 551.

'Any person who shall sell, give away or dispose of intoxicating liquors to any person under the age of twenty-one (21) years' commits an offense and violates the law, R.C.M.1947, § 94-35-106, and the phrase 'intoxicating liquor' includes beer, R.C.M.1947, § 94-35-107. It matters not whether the defendant Winter was employer or employee,--whether he worked for Peter F. Karst or anyone else,--whether he or Karst or anyone else had a retail beer license,--whether he was winter keeper, horse wrangler, watchman, bartender, guest or intruder, the fact remains that both before and after the amendment of the information Winter was a person and the one and only person accused of the offense of selling beer to the named minor being the one and only offense charged. Clearly the information was sufficient both before and after its amendment. We consider the added italicized words to be mere surplusage. Compare State v. Gaffney, 106 Mont. 310, 312, 77 P.2d 398; 42 C.J.S., Indictments and Informations, § 250, p. 1266, and cases cited including State v. Finley, 72 Mont. 42, 46, 231 P. 390; Commonwealth Public Service Co. v. City of Deer Lodge, 96 Mont. 15, 21, 28 P.2d 472; Fitzpatrick v. Stevenson, 104 Mont. 439, 444, 67 P.2d 310; People v. McInerney, 30 Cal.App. 283, 158 P. 128.

The defendant interposed a demurrer to the information as amended, urging as grounds that it appears from the face thereof: (1) That the district court has no jurisdiction of the offense charged; (2) that the amended information does not substantially conform to the requirements of R.C.M.1947, §§ 94-6403, 94-6404 or 94-6405; (3) that more than one offense is charged therein; (4) that the facts therein stated do not constitute a public offense and (5) that the amended information contains matter which, if true, constitutes a legal bar to the prosecution. After a hearing had thereon the defendant's demurrer was disallowed.

Defendant contends that the amended information is insufficient in that it fails to allege the percentage of the alcohol in the beer which he is accused of having sold to the minor but we find no merit in the contention. R.C.M.1947, § 94-35-107, defines 'intoxicating liquor' and it includes beer without stating the percentage of alcohol therein. Under the provisions of R.C.M.1947, § 94-35-106, the amended information was sufficient without alleging the percentage of the alcohol in the beer sold. Compare 30 Am.Jur., Intoxicating Liquors, § 382, p. 460; Welsh v. State, 126 Ind. 71, 25 N.E. 883, 9 L.R.A. 664; State v. Sedlacek, 74 Mont. 201, 205, 239 P. 1002; State v. Miller, 69 Mont. 1, 220 P. 97.

Following the overruling of defendant's demurrer the case came on for trial at the outset whereof the defendant again challenged the sufficiency of the information as amended by objecting to the introduction of any evidence urging all the grounds theretofore urged in his demurrer. The objections were overruled and the cause proceeded to trial before the court and a jury.

Six witnesses were called and testified on behalf of the state and the state rested its case in chief whereupon defendant's counsel moved for a directed verdict grounded upon the claimed insufficiency of the state's evidence which motion was denied.

After calling and examining three witnesses the defendant rested his case and the court then proceeded to settle the instructions.

Defendant specifies as error the giving, over his objections, of the court's instruction No. 26 which reads:

'You are instructed that under the law of the State of Montana any person who shall sell, give away or dispose of intoxicating liquor to any persons under the age of twenty-one (21) years, shall for the first offense be subject to punishment not exceeding five hundred dollars ($500.00) fine or by imprisonment not to exceed six (6) months in the county jail, or both such fine and imprisonment * * *'

The above is merely a statement of those provisions of section 1 of Chapter 143, Laws of 1949 (now R.C.M.1947, § 94-35-106, Vol. 8, Cumulative Pocket Supplement to Revised Codes of 1947) pertinent to this particular case. Defendant objected to the instruction upon the ground 'that the State of Montana has heretofore set forth the prosecution was under the provisions of Section 4-330, as amended by Chapter 166, Session Laws of 1951, that that was the law then and there applicable on the 8th day of May, 1953; that this is an attempt to define the first time punishment in an offense under a different statute; it's in violation of the Constitutional rights and Statutory rights guaranteed to a defendant by the Laws of the State of Montana.'

Instruction No. 26, supra, correctly states the law here applicable and the trial court's ruling disallowing defendant's objections was correct.

After being instructed by the court,--hearing the arguments of counsel and considering the evidence, the jury returned its verdict finding the defendant guilty and leaving his punishment to the court. Defendant's counsel thereupon interposed a motion in arrest of judgment which motion was disallowed and defendant was sentenced to serve 15 days in the county jail and to pay a $500 fine.

Defendant made a motion for a new trial which was disallowed whereupon he appealed to this court listing and arguing nineteen separately numbered specifications of error.

Defendant here contends that the trial court committed error: (1 and 15) In allowing the amendment of the information; (2) in disallowing defendant's objection to the introduction of any evidence in the case; (3) in overruling the demurrer to the amended information; (4) in denying defendant's motion for dismissal of the case made at the close of all the state's evidence; (5) in disallowing defendant's motion in arrest of judgment; (6) in refusing to grant a new trial; (7) in ruling that the district court had jurisdiction of the offense charged; (8, 9 and 14) in allowing defendant's prosecution and in sustaining his conviction; (10 and 11) in pronouncing sentence on defendant under R.C.M.1947, § 94-35-106, as amended and (12 and 13) in giving the court's instruction No. 26, supra. Finally in his specifications Nos. 16, 17, 18 and 19 the defendant contends that the verdict rendered by the jury in his case was contrary to: (a) the law; (b) the court's instructions and (c) the evidence, and (d) that such verdict was based upon conjecture, surmise, bias and prejudicial statements and evidence aliunde the record.

State's Evidence. The state's evidence is undisputed. It is to the following effect.

Friday, May 8, 1953, was what is known as 'Ditch Day' in the Gallatin County High School at Bozeman and it was observed by the members of the senior class with a class picnic held at Old Faithful in Yellowstone National Park. On the way home from such picnic four teen-aged boys stopped their automobile at Karst's Kamp on highway 191 in Gallatin County.

At that time the state's witness, Peter F. Karst, was the owner of said Karst's Kamp where he engaged in the retail beer and liquor business pursuant to the authority conferred upon him by retail beer...