(220 P.)

but applies generally to all actions for di-13. Intoxicating liquors 196-Repealing statute held not applicable to section not inconsistent and not specially included.

vorce.

Section 5784, Revised Codes 1921, makes it the duty of the husband to support his wife out of his property or labor, and by the provisions of section 5800, if he neglects to do so (unless the wife has abandoned him without justification), any person may in good faith supply her with articles necessary for her support and recover value therefor from him.

Considering the fact that under the common law as it existed in this jurisdiction when our Codes were adopted, it was recognized that a court of equity had inherent authority to grant a wife separate maintenance independent of an action for divorce, and that no statute has been enacted to take away this right, that the right to grant maintenance without a decree of divorce is recognized by section 5768, supra, and that the statute expressly imposes upon a husband the duty to support his wife, we conclude that the court is possessed of power to grant a decree for separate maintenance, together with alimony, attorney's fees, and suit money, during the pendency of an action instituted for that purpose, irrespective of any statute granting the same, and without the necessity of joining therewith an application for divorce, or stating facts which would entitle her to maintain such an action.

Such being the law, it follows that the motion to quash the alternative writ issued in this proceeding should be sustained, and it is so ordered.

Rev. Codes 1921, § 11078, repealing certain sections of Laws 1917, c. 143, not including section 14 and other enumerated statutes, and be construed as supplemental to and part of concluding that except as specified it should all other state liquor laws, did not repeal section 14, relieving pleaders in prosecutions for sale and possession from alleging kind, place of sale, or buyer's name, since the statutes did not conflict.

4. Indictment and information 199-Va-
riance in dates for illegal sale held cured by
bill of particulars and failure to object.
Under Rev. Codes 1921, § 11874, validating
departures and mistakes in pleading or pro-
ceedings not substantially prejudicial, defendant
in a prosecution for sale and possession can-
charge related to a sale on a different date,
not complain that the evidence supporting the
where on the court's invitation he declined to
claim surprise at the close of state's testimony,
and a bill of particulars furnished him advised
the date of sale and buyer's name relied on.
5. Criminal law 404(4)-Officer's contempt
of court in not destroying liquor held not to
render it inadmissible.

In a prosecution for sale and possession, an
officer's contempt of court in not destroying
liquors under an order in a prior separate pro-
ceeding against them did not render such liq-
uor inadmissible.
6. Criminal law

178-State's dismissal before trial held not an acquittal.

State's dismissal before trial of a prosecution for sale and possession of intoxicants was not an acquittal precluding further prosecution,

COOPER, HOLLOWAY, and GALEN, JJ., notwithstanding Rev. Codes 1921, § 12229, mak

concur.

CALLAWAY, C. J. In view of the decisions of this court and the statutes cited by Mr. Justice STARK, I believe the conclusion reached in this cause is justified, but I do not agree with all that is said in the foregoing opinion.

STATE y. KNILANS. (No. 5335.) (Supreme Court of Montana. Nov. 9, 1923.) 1. Criminal law 1134 (3)-Propriety of overruling demurrer to dismissed pleading held moot.

Upon dismissal of an information the pleading became functus officio, and the propriety of overruling a demurrer thereto being moot was not reviewable.

ing dismissal bar other prosecution for the same misdemeanor.

7. Indictment and information

121(5)—Bill

of particulars held to cure information alleg. ing same sale date as dismissed prosecution. In a prosecution for sale and possession, an information alleging a sale on the same date as formerly alleged in a dismissed prosecution was cured by a bill of particulars furnished under Rev. Codes 1921, § 11078, apprising defendant of a different date and buyer's name relied on.

8. Criminal law 1137(7) - Defendant's Instruction held to preclude objection to insufficient proof.

In a prosecution for sale and possession of intoxicants, defendant's objection that mere proof of nonresidence did not sustain state's allegation that defendant resided outside the state between certain dates, thus barring the running of Rev. Codes 1921, § 11724, limiting commencement of misdemeanor prosecutions to one year, was precluded by defendant's instruc

2. Intoxicating liquors 207, 216, 219-Plead-tions based on the same dates.
ing need not allege kind, place of sale, or
name of buyer.

Laws 1917, c. 143, § 14 (Rev. Codes 1921, § 11111), specifically relieves the pleader in prosecution for sale and possession from alleging the kind, place of sale, or buyer's name.

9. Criminal law 565-Evidence held to sustain allegation of nonresidence under limitation statute.

Under Rev. Codes 1921, §§ 11724, 11725, limiting commencement of misdemeanor pros

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ecutions to one year after commission, unless | counsel is mistaken. Section 39 of chapter prevented by nonresidence, testimony that de- 9, above, declares that certain sections of fendant left town, stating his intention to go to chapter 143, Laws of 1917, not including secIreland, and returned about three months later, tion 14, and other enumerated statutes, are telling about his trip, sustained state's burden repealed, and then concludes: of showing 20 days' absence between certain alleged dates.

"Except as herein otherwise specified, this Act shall be construed as supplemental to and Appeal from District Court, Daniels Coun- a part of all laws of this state relating to inty; C. E. Comer, Judge. toxicating liquors."

W. D. Rankin, Atty. Gen., and L. V. Ketmation charged that the sale was made on or ter, Asst. Atty. Gen., for the State.

[1] 1. Error is assigned to the order of the "Neither a departure from the form or mode court overruling the demurrer to the original prescribed by this Code in respect to any pleadinformation. Upon the dismissal that plead-ing or proceeding, nor an error or mistake ing became functus officio, and the question now presented is purely a moot one, and will not be considered. Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont. 494, 124 Pac. 475.

[6] It is contended further that evidence of an unlawful sale on December 25, 1921, could not be introduced to prove that the possession of the liquor was unlawful, for the reason that by the dismissal of the original information defendant was acquitted of the charge of selling liquor on December 26, 1921, But defendant is in error in assuming that that dismissal operated as an acquittal.

"The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and had pleaded, and a jury have been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach." 16 C. J.

236.

"It is a general rule that a nolle prosequi, dismissal or discontinuance, entered before a defendant is called upon to plead, or before the jury are impaneled and sworn, is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense." Id. 248; State v. Keerl, 33 Mont. 501, 85 Pac. 862. Section 12229, Revised Codes 1921, provides:

"An order for the dismissal of an action, as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor," etc.

The prosecution of the offense charged in each count was barred unless the case is brought within the provisions of section 11725, which declares:

"If, after the offense is committed, the defendant leaves the state or resides outside the state, the indictment may be found or an information or complaint filed within the time herein limited, after his coming within the state, and no time during which the defendant is not an inhabitant of or actually a resident within this state is part of the limitation."

It is conceded that this is a sufficient pleading, but it is contended that the state failed to prove the facts alleged. In his brief, counsel for defendant now insists that since the state alleged that the defendant resided outside of the state of Montana for

evidence beyond a reasonable doubt that be

a period of time sufficient to bring the prosecution within the statute, it was incumbent upon it to prove that allegation, and proof of absence from the state is not sufficient. But [7] While the charge contained in the first again defendant is precluded from making count of this information is apparently the this argument by the record. Defendant resame as that contained in the original in-quested the court to give, and the court gave, formation, which was dismissed, the record instruction 8, which reads as follows: discloses that it was not such in fact. In the original information the sale was alleged to have been made on or about December 26, 1921. Pursuant to the provisions of section 11078 a bill of particulars was demanded by defendant and furnished by the state, in which the date of the alleged sale was fixed as December 26, 1921, the kind and quantity of liquor alleged to have been sold described. and the names of the purchasers, Robert Noland and J. F. Morrison, were given. In the amended information the sale was alleged to have been made on or about December 26, 1921, but in the bill of particulars furnished under this information the defendant was apprised of the fact that the state would rely upon a sale made December 3, 1921, to R. L. Morrison and J. F. Morrison. The two offenses were not the same, and dismissal of the first information did not bar prosecution under the amended information.

[8] 5. It is contended that the prosecution of this action was barred by the provisions of section 11724, Revised Codes 1921, which provides:

"An indictment for any misdemeanor must be found, or an information filed or complaint made, within one year after its commission."

"You are instructed that before you can find the defendant guilty of the crime charged in the first count herein you must be satisfied from the tween the 20th day of April, 1922, and the 20th day of August, 1922, the defendant left the state of Montana and remained outside of the state of Montana for a period of at least 20 days, and before you can find the defendant guilty of the crime charged in the second count of said information you must be satisfied beyond a reasonable doubt from the evidence that 20th day of August, 1922, said defendant left between the 20th day of April, 1922, and the the state of Montana and remained outside of the state of Montana for a period of at least 10 days."

[9] This instruction became the law of the case, binding upon the defendant, who cannot now be heard to say that a greater burden was imposed upon the state than that indicated by his own instruction. The burden was imposed upon the state to prove that between April 20, 1922, and August 20, 1922, the defendant left the state of Montana and remained outside the state for a period of at least 20 days so far as the charge contained in the first count is concerned, and for a

period of at least 10 days so far as the
charge contained in the second count is con-
cerned. The evidence discloses that defend-
ant left Scobey, Mont., about May 18, 1922,
stating that he intended to go to Ireland;
that he returned about August 20, 1922, and
upon his return stated that he had gone to
Ireland by boat on a business trip, had visit-
ed Liverpool among other places, and had
been absent several months. The fact that
he had been absent from the state for the
necessary period could be established by cir-
cumstantial evidence, and it cannot be said
that it is not a legitimate inference from
the testimony above that defendant was ab-
sent from Montana for at least 20 days.
We find no error in the record.

The judgment and order are affirmed.
Affirmed.

4. Criminal law 365 (2) - Illegal contract for purchase prior to arrest held admissible in prosecution for illegal possession of morphine.

In a prosecution for illegal possession of morphine, proof that witness had contracted with defendant immediately prior to his arrest for purchase of morphine to be delivered through a fence hole, and that defendant received $15, was properly admitted as res gestæ, since proof of the other crime tended to prove this one by showing bad intent. 5. Constitutional law 55-Legislature may prescribe prima facie evidence of guilt and change rules of evidence.

In the absence of express constitutional inhibition, the Legislature may prescribe what shall constitute prima facie evidence of guilt and shift to defendant the necessity of satisfactory explanation and change the rule at any time.

CALLAWAY, C. J., and COOPER, GALEN, 6. Criminal law ~404(4)—Twenty-dollar bill and STARK, JJ., concur.

(No. 5352.)

STATE V. MARK. (Supreme Court of Montana. Nov. 9, 1923.)

1. Statutes 118(1)-Title of act suppressing morphine and cocaine traffic held to sufficiently disclose subject.

received in payment for narcotics held admissible to prove possession of morphine.

In a prosecution for unlawful possession of morphine, a $20 bill received by defendant under a contract to sell the narcotics was properly admitted.

7. Criminal law 1172(9)—Instruction fixing too high minimum penalty for illegal possession of morphine held reversible error.

Under Laws 1921, c. 202, fixing maximum penalty for illegal possession of morphine at $1,000 or imprisonment for three years, an Under Const. art. 5, § 23, making parts of instruction requiring "not less than $500" or acts, not clearly expressed in the title, void, "not less than one year imprisonment" was Laws 1921, c. 202, "to regulate the production, reversible error, since under Rev. Codes 1921, manufacture, sale, etc., of opium § 12027, authorizing the jury to fix the punleaves," and under certain conditions declar-ishment, it might have fixed the fine at from ing possession to be unlawful, sufficiently disclosed its intention to "regulate" and "prohibit" possession of opium and coca leaves, their salts, etc., including morphine, a product of opium, as well as use and sale.

or coca

Under Const. art. 5, § 23, requiring titles of acts to disclose their subjects, Laws 1923, c. 36, entitled "An act to amend section 3202 of chapter 202 of the Revised Codes of 1921, providing a penalty," is void, since it cannot be determined whether the purpose was to amend chapter 202, Laws 1921, or Rev. Codes 1921, § 3202, nor what the "penalty" is for.

3. Poisons 9-Instruction, under statute providing that in trials for possession of morphine defendant must show possession was lawful, held not to invade constitutional rights.

$1 to $1,000.

8. Criminal law

1218-Imprisonment in state prison for statutory misdemeanor held improper.

Under Laws 1921, c. 202, providing punishment for illegal possession of morphine by fine of not less than $1,000 or imprisonment not more than three years or both, and making the offense a misdemeanor, sentence to confinement in the penitentiary in lieu of the county jail was unauthorized.

H. C. Levinski, of Butte, for appellant. W. D. Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

Under Laws 1921, c. 202, § 12, making possession of opium, cocaine, etc., obtained in any manner contrary to the act unlawful, and making defendant prove his possession lawful, an instruction that possession was presumptive evidence of violation of the law did not violate any constitutional guaranties, where the evidence clearly showed unlawful entered a plea of not guilty, and the case possession. was tried to a jury, which returned a verdict

GALEN, J. By information filed in the district court of Silver Bow county, the defendant was charged with unlawfully possessing morphine and cocaine.

The defendant

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 P.)

State

See, also, Yegen v. Board of County Commissioners, 34 Mont. 79, 85 Pac. 740; Evers v. Hudson, 36 Mont. 135, 92 Pac. 462.

of guilty, fixing punishment at imprisonment based upon mere form or phraseology.' in the state's prison for not less than one nor v. Anaconda C. M. Co., 23 Mont. 498, 59 Pac. 854. more than two years, and a fine of $500. A motion in arrest of judgment was made and by the court denied, and judgment thereupon duly entered on the verdict. The appeal is from the judgment and from an order overThe unity of title required by this constitu ruling defendant's motion for a new trial. tional provision is served notwithstanding Several errors are specified as grounds of many provisions in an act, where they are reversal, presenting five questions necessary germane to the general subject expressed. to be decided in disposing of this appeal, viz.: Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. (1) Is the subject of chapter 202, Laws of 821; State v. McKinney, 29 Mont. 375, 74 1921 (sections 3189 to 3202, inc., Rev. Codes Pac. 1095, 1 Ann. Cas. 579; In re Terrett, 34 1921), sufficiently expressed in its title? (2) Mont. 325, 86 Pac. 266. The Legislature is Is the attempted amendment thereof by the judge, to a great extent at least, of the chapter 36, Laws of 1923, valid? (3) Is that title which it will prefix to a bill; and the portion of section 12 of chapter 202, Laws of court has no right to hold a title void be 1921 (section 3200, Rev. Codes 1921), which cause, in its opinion, a better one might have makes the possession or control of drugs pre- been used. State v. McKinney, supra; secsumptive evidence of violation of the law, tion 88, Sutherland on Statutory Construcunconstitutional? (4) Was the admission of tion. Speaking of such constitutional limitaevidence of attempts to purchase narcotics tion, Judge Cooley says:

from the defendant reversible error? (5) Is

the judgment contrary to the law?

"The general purpose of these provisions is

[1] 1. The title of chapter 202, Laws of accomplished when a law has but one general 1921, reads:

"An act to regulate the production, manufacture, sale, barter, exchange, distribution, dealing in, giving away, dispensing, or the disposing in any manner of opium or coca leaves, their salts, derivatives or preparations; to define drug addiction; to provide for the reporting of drug addicts, to regulate the treatment and to provide for the committal of the habitual users of such drugs; to provide for the revocation of license of habitual users; to provide that under certain conditions the possession of said drugs shall be unlawful, to provide for the enforcement thereof; making an appropriation for carrying out the provisions of this act; providing penalties for its violation, and repealing all acts in conflict herewith."

object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act, relating to that alone, would not only be unreasonable, but would actually render legislation impossible." Cooley, Const. Lim. (6th Ed.) 172.

The title of the act before us clearly indicates that it is one to regulate and prohibit the use of "opium or coca leaves, their salts or derivatives or preparations." Morphine is produced from opium, and cocaine from coca leaves; so that it is clear from the title that these drugs are to be regulated and the possession thereof made unlawful under certain conditions. No one can interpret the title otherwise than that the act is primarily intended to prevent drug addiction, and to regulate and prohibit the sale and dispensing of such drugs. The words "to regulate" are used in the title, and then it is plainly further stated therein that the act is to provide

The defendant contends that the title does not clearly express the purpose of the act to prohibit the possession of the objectionable drugs enumerated, contrary to the provisions of section 23, art. 5, of the Constitution. In support of this argument we are cited to sev-"that under certain conditions the possession eral Montana cases, as well as cases from other jurisdictions; but they are not in point as respects the title of this act.

of said drugs shall be unlawful." This lastquoted phrase indicates prohibitive provisions, and leaves the defendant's argument and authorities cited wholly without application. We hold the intent to prohibit the use of such drugs under certain conditions sufficiently expressed in the title of the act.

"But by this constitutional notice it is only intended that the subject of the bill shall be fairly expressed in the title. It is not necessary for the Constitution has not so declaredthat a title shall embody the exact limitations or qualifications contained in the bill itself which are germane to the purpose of the Legislature, if the general subject of the measure is clearly expressed in the title. Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the Constitution itself, the courts ought not to 'embarrass legislation by technical interpretations a penalty."

[2] 2. The attempted amendment of chapter 202, Laws of 1921, by chapter 36, Laws of 1923, in is our opinion a nullity and should be wholly disregarded. We hold it void for failure of its title to clearly express its subject, contrary to section 23 of article 5 of our The title is meaningless. It Constitution. reads:

"An act to amend section 3202 of chapter 202. of the Revised Codes of 1921, providing