Vines v. State

• Decision Date: 14 June 1911
• Docket Number: 637
• Parties: VINES v. STATE
• Court: Wyoming Supreme Court

116 P. 1013

19 Wyo. 255

VINES v. STATE

No. 637

Supreme Court of Wyoming

June 14, 1911

ERROR to the District Court, Sheridan County; HON. RODERIC N MATSON, Judge.

The plaintiff in error, James Vines, was convicted of selling intoxicating liquors without a license and brought error. The material facts are stated in the opinion.

Judgment affirmed.

Enterline & LaFleiche for plaintiff in error.

The failure to state in the information a definite place in the county where the alleged unlawful sale or sales were made, or whether the sale or sales were by wholesale or retail, or whether the liquor was sold to be drunk on the premises, or otherwise, or the price for which the same was sold, renders the information defective, and the motion to quash should have been sustained. (Arrington v. Comm. (Va.), 10 L. R. A. 242.) The definite place of sale should be alleged in order to notify the accused of the charge against him so that he may prepare to meet it, and, second, that a conviction upon the information may be pleaded in bar of a subsequent prosecution. In order to constitute the offense charged the sale must have been for a pecuniary advantage. It is therefore necessary to specify the consideration or pecuniary advantage for which the intoxicating liquor was sold. It is not a crime under the statute upon which the prosecution was based for one to sell or dispose of intoxicating liquors unless it be for a pecuniary advantage which is an advantage relating to money. (Anderson's L Dict. 762; Bouvier's L. Dict. 642; 1 Cent. Dict. Ency 85.) The charge that intoxicating liquor, to-wit, beer, was sold is insufficient. Designating the liquor sold as intoxicating is merely a legal conclusion and, in itself, is insufficient. The term "beer" as used in the information is insufficient to describe an intoxicating liquor. The statute does not designate any particular kind of liquor as intoxicating. The information fails to show whether the beer was spiritous, malt or fermented, or that it was lager beer, or malt beer or fermented beer. The absence of such an allegation renders the information defective. (State v. Brew. Co. (S. D.), 26 L. R. A. 133; Blatz v. Rohrbach, 6 L. R. A. 669; State v. Burchard, 57 N.W. 491.) The evidence was insufficient as proof that the beer sold was intoxicating, and the court erred in instructing the jury that in the absence of proof to the contrary beer is regarded as an intoxicating liquor. By that instruction the court invaded the province of the jury. In some states the statute describes beer and other liquor as intoxicating, in which case it is not necessary to allege or prove that the liquor charged to have been sold is intoxicating, if it is a kind mentioned in the statute. (Moss v. State (Okl.), 111 P. 950.)

The state dismissed the first count and certain other counts of the information after it had rested its case, which resulted in a request by the defendant for an instruction to find the defendant not guilty. After the first count had been dismissed the subsequent counts were left without any allegation of authority under which the prosecution was instituted and carried on. Each subsequent count merely refers to such authority as "in the name and by the authority aforesaid." This is not a compliance with the statutory requirement that the prosecution shall be carried on in the name and by the authority of the State of Wyoming. The dismissal of the count was in effect an acquittal of the defendant thereon so that thereafter the accused could not be prosecuted for the offense contained in that count. Therefore no subsequent count can be aided by reference to the first count that was dismissed. (State v. McClung, 13 S.E. 654; State v. Caddle, 19 Ark. 613; State v. Hazle, 20 Ark. 156; Williams v. State, 47 Ark. 230; State v. Clevenger, 25 Mo.App. 655; State v. Strickland, 10 S.C. 191; Comm. v. Carney, 4 Gratt. 546; Thompson v. Comm., 7 Gratt. 724.) The kind of liquor that defendant kept was wholly immaterial to the question at issue and the court erred in admitting evidence with reference to such fact. The defendant was not charged with keeping intoxicating liquors for sale. The evidence was insufficient to establish the venue for each count in the information. While courts have generally held that each actual sale of liquor is an offense, yet it seems to us that the statute should have a broad and fair interpretation. It is the intention of the law primarily to prevent one from keeping or selling liquors without a license, and we believe that under circumstances like those disclosed by this record, where the state is seeking to establish the venue of the several counts by a mere reference to the saloon wherein and whereat the state must contend that all the violations occurred, in order to remain in court, the presumption is proper that all of the violations occurred in that particular saloon. That being so it would seem just that the defendant be put upon trial by information containing but one count charging him with a violation of the law at a certain described place. It is not the policy of the law to divide the circumstances surrounding an offense into as many counts as possible. The defendant was guilty of but one offense, viz: that of either engaging in retailing or wholesaling intoxicating liquors without a license. Whether he made one or more sales it will constitute the offense and should be considered as such. Otherwise, under our statute which fixes a fine of $ 150 for each offense, an offending party might, upon the non-payment of the total fines assessed for a number of sales, be confined in the jail for years. (See In re Snow (120 U.S.), 30 L.Ed. 658.)

(Opposing motion to strike bill of exceptions). The bill of exceptions was presented to the proper court within the time allowed. Even though he did not so present it, any irregularity in that respect was cured by the entry of a nunc pro tunc order of the trial judge. It was as much the duty of the trial judge, who had been called in to preside over the trial, to appear in the court within the time designated in his order, for the purpose of settling the bill of exceptions, as it would have been for him to be there for the purpose of pronouncing judgment. The plaintiff in error had a right to assume that the trial judge would be at the court on the first day of the next term to receive the bill of exceptions presented, and in the absence of such trial judge, it was proper to present the bill to the court. The plaintiff in error cannot be held responsible for the failure of the clerk to immediately transmit the presented bill to the trial judge. It is not necessary that a bill should be signed within the time that it is required to be presented. (Bradbury v. Alden, 57 P. 490.) And it has been held in the absence of a statute making a specific provision as to the place for presenting a bill that it may be filed with the clerk. (Bradbury v. Alden, supra.) The statute relating to bills of exceptions is to be liberally construed. (Conway v. Smith Merc. Co., 6 Wyo. 327; Jones v. Bowman, 10 Wyo. 47; Harden v. Card, 14 Wyo. 479.) The plaintiff in error not having been guilty of laches should not be deprived of his rights. (Garbade v. Inv. Co. 59 P. 711.)

D. A. Preston, Attorney General, and Charles A. Kutcher, for the state.

The presentation of the bill to Judge Parmelee, even though in open court, was not a sufficient compliance with the law, a different judge having presided at the trial. The bill of exceptions must be presented for allowance to the judge who tried the case, either in chambers, or in vacation, or while presiding when the court is in session. (Stirling v. Wagner, 4 Wyo. 5; Parker v. LaGrange (Ill.), 48 N.E. 1058; Hill v. Hill (Mich.), 71 N.W. 144.) A bill of exceptions in criminal cases must be presented in accordance with the rules prescribed for civil cases. (Koppala v. State (Wyo.), 89 P. 576.) A part of the proceedings set forth in the bill were had before Judge Parmelee and a part thereof before Judge Matson, but the bill is signed alone by the last named judge. The motion to quash the information having been determined by Judge Parmelee, and the bill of exceptions not having been signed by him, the bill is insufficient for that reason. Where different judges preside during the course of a trial, or during different proceedings in the cause, each must sign a bill as to the proceedings before him. (3 Cyc. 33; 3 Ency. Pl. & Pr. 454; Turner v. Hearst (Cal.), 47 P. 129; Shields v. Horbask (Neb.), 58 N.W. 720; County v. Gilmer (Ga.), 51 S.E. 307; Fechheimer v. Trounsteine (Colo.), 20 P. 704.)

The place where intoxicating liquors have been sold in violation of the statute is not necessary to be alleged, for it is not included within the statutory definition of the offense. Where the statute fully defines a crime it is sufficient for the information to follow the language of the statute. (White v. Comm. (Va.), 59 S.E. 1101.) It is sufficient to charge the unlawful sale of intoxicating liquors as having been made within the county, without more specifically describing the place of sale, unless by the express provision of the statute the crime is made local. (23 Cyc. 224, note 34; 11 Ency. Pl. & Pr. 540; State v Hickok (Wis.), 62 N.W. 934; Comm. v. Kern (Mass.), 18 N.E. 566; Antonelli v. State (Okl.), 107 P. 951; Shuler v. State (Ga.), 54 S.E. 689; White v. Comm. (Va.), 59 S.E. 1101; State v. Allen (Kan.), 66 P. 628; People v. Ringsted (Mich.), 51 N.W. 518; Peterson v. State (90 N.W.); 22 O. St. 405; State v. Donaldson (S. D.), 81 N.W. 299.) It was unnecessary for the information to allege whether the sale was by wholesale or retail, or whether the liquor was to be drunk on the premises. Neither of these matters were essential to...