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(220 P.)

but applies generally to all actions for diWorce.

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 maintemance 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.

COOPER, HollowAY, and GALEN, J.J., 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.

E

STATE y. KNILANs. (No. 5335.) (Supreme Court of Montana. Nov. 9, 1923.)

I. Criminal law & I 134(3)—Propriety of over

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

2.Intoxicating liquors &=>207,216, 219–Pleading 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 prosoution for sale and possession from alleging the kind, place of sale, or buyer's name.

3. Intoxicating liquors & 196—Repealing statute held not applicable to sectic n not inconsistent and not specially included. Rev. Codes 1921, § 11078, repealing certain sections of Laws 1917, c. 143, not including section 14 and other enumerated statutes, and concluding that except as specified it should be construed as supplemental to and part of 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 3-M199 - Variance 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 proceedings not substantially prejudicial, defendant in a prosecution for sale and possession cannot complain that the evidence supporting the charge related to a sale on a different date, 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 6-404(4)–0fficer'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 proceeding against them did not render such liquor 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, notwithstanding Rev. Codes 1921, § 12229, making dismissal bar other prosecution for the same misdemeanor.

7. Indictment and information 6-121 (5)—Bill of particulars held to cure information alleging 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 3-1 (37(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 instructions based on the same dates.

9. Criminal law 3-565-Evidence held to sustain allegation of nonresidence under limitation statute.

Under Rev. Codes 1921, §§ 11724, 11725, limiting commencement of misdemeanor prosfendant left town, stating his intention to go to Ireland, and returned about three months later, telling about his trip, sustained state's burden of showing 20 days' absence between certain alleged dates.

&=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

Appeal from District Court, Daniels County; C. E. Comer, Judge.

W. Knilans was convicted of unlawful sale and possession of intoxicating liquors, and he appeals from the judgment and an order denying a new trial. Affirmed.

Paul Babcock, of Plentywood, for appellant.

W. D. Rankin, Atty. Gen., and L. W. Ketter, Asst. Atty. Gen., for the State.

HOLLOWAY, J. In an information filed in the district court of Daniels county on January 6, 1922, it was charged that this defendant had violated the prohibitory liquor laws on or abdüt December 26, 1921. On January 16, 1923, that information was dismissed on motion of defendant and with the consent of the county attorney. On the same day a new information was filed, and thereafter a demurrer to that information was sustained. On February 5, 1923, an amended information was filed containing two counts; in the first count the defendant was charged with the unlawful sale of intoxicating liquor on or about December 26, 1921, and in the second count he was charged with the unlawful possession of intoxicating liquor on or about January 6, 1922. A plea of not guilty was entered, a trial had, and the defendant found guilty upon both counts. He has appealed from the judgment and from an order denying him a new trial. r

[1] 1. Error is assigned to the order of the court overruling the demurrer to the original information. 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.

[2] 2. It is contended that the amended information does not charge a public offense fri either count, in that it fails to state (a) the kind of liquor possessed or sold, (b) the place where possessed or sold, or (c) the name of the person to whom the liquor was sold, and authorities from other jurisdictions are cited which would lend support for the contention but for the fact that section 14, c.

Upon the dismissal that plead

chapter 143, Laws of 1917, not including section 14, and other enumerated statutes, are repealed, and then concludes:

“Except as herein otherwise specified, this Act shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors.”

There is not any conflict between the provisions of section 11078 and the provisions of section 11111 above; hence the general repealing clause found in the former does not affect the provisions of the latter.

[4] 3. While the first count of this infor. mation charged that the sale was made on or about December 26, the evidence in support of the charge all related to a sale made on December 3. Defendant now complains that he was prejudiced by the ruling of the court admitting the evidence, but the record is conclusive against him. It is disclosed that defendant was furnished a bill of particulars in which he was advised that the state would rely upon proof of a sale made on December 3 and was given the names of the persons to whom the alleged sale was made. But furthermore, when the state's testimony was concluded, the court invited the defendant to say whether he had been taken by surprise so that he could not properly defend against the charge, and defendant declined to say that he was so surprised and did not ask for a continuance. We do not mean to intimate that there was a material variance between the pleading and proof, but defendant is not now in a position to say that he was prejudiced in respect of any substantial right. Section 11874, Revised Codes 1921, declares:

“Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

[5] 4. To prove that defendant's possession

of the liquor on January 6, 1922, was unlawful, the state introduced evidence to the effect that on December 26, 1921, defendant had unlawfully sold some of the same stock of liquors, and the liquors selzed on January 6 were introduced in evidence. It appears from the record that in 1922, in a separate proceeding against these liquors, the court adjudged them forfeited and ordered them | destroyed, and the contention is made that to punishment for contempt, but could not affect the admissibility of the liquors as evidence. - [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.

143, Laws of 1917 (section 11111, Rev. Codes if the order had been obeyed the liquors 1921), specifically relieves the pleader from would not have been in existence and could the necessity of alleging any of the facts not have been used as evidence upon the mentioned (State v. Fredericks, 65 Mont. 25, trial of this case; hence it was error to 212 Pac. 495). permit them to be so used. The order did

[3] But counsel for defendant insists that not designate any time within which i. the statutes above were repealed by chapter liquors should be destroyed; but, assuming 9 of the Extraordinary Session of 1921 that the order was disobeyed, the ão, (section 1107s, Rev. codes 1921). In this of such disobedience might subject the oucer

(220 P.)

“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 ; done, jeopardy does not attach." 16 C. J.

"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 aequittal 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.

[7] While the charge contained in the first count of this information is apparently the same as that contained in the original information, which was dismissed, the record 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 beeh made on or about December 26, 1921, but in the bill of particulars furnished under this information the defendant was *Dprised 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.

sol 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 * found, or an information filed or complaint made, within one year after its commission.”

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.”

To prevent the interposition of the plea of the bar of the statute of limitations, the county attorney included in each count the following allegation:

“That after the commission of said offense, to wit, on or about the 20th day of April, 1922, the said defendant W. Knilans left the state of Montana and from said date until on or about the 20th day of August, A. D. 1922, a period of approximately four months, the defendant, W. Knilans resided outside of the state of Montana.”

It is conceded that this is a sufficient pleading, but it is contended that the state failed to prove the facts alleged. In hiş brief, counsel for defendant now insists that since the state alleged that the defendant resided outside of the state of Montana for 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 again defendant is precluded from making this argument by the record. Defendant re. quested the court to give, and the court gave, instruction 8, which reads as, follows:

“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 evidence beyond a reasonable doubt that between 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 between the 20th day of April, 1922, and the 20th day of August, 1922, said defendant left 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 concerned. The evidence discloses that defendant 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 visited 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 cirCumstantial evidence, and it cannot be said that it is not a legitimate inference from the testimony above that defendant was absent from Montana for at least 20 days. We find no error in the record. The judgment and order are affirmed. Affirmed.

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4. Criminal law 3-365(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 gestae, since proof of the other crime tended to prove this one by showing bad intent.

5. Constitutional law 6-55–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. 6. Criminal law 3-404(4)–Twenty-dollar bill 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 3-1 172(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 instruction requiring “not less than $500” or “not less than one year imprisonment” was reversible error, since under Rev. Codes 1921, § 12027, authorizing the jury to fix the punishment, it might have fixed the fine at from $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.

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Henry Mark was convicted of unlawful possession of morphine and cocaine, and he appeals. Reversed and remanded, with direction.

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

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 entered a plea of not guilty, and the case was tried to a jury, which returned a verdict

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

- (220 P.)

of guilty, fixing punishment at imprisonment in the state's prison for not less than one nor 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 overruling defendant's motion for a new trial. Several errors are specified as grounds of reversal, presenting five questions necessary to be decided in disposing of this appeal, viz.: (1) Is the subject of chapter 202, Laws of 1921 (sections 3189 to 3202, inc., Rev. Codes 1921), sufficiently expressed in its title? (2) Is the attempted amendment thereof by chapter 36, Laws of 1923, valid 2 (3) Is that portion of section 12 of chapter 202, Laws of 1921 (section 3200, Rev. Codes 1921), which makes the possession or control of drugs presumptive evidence of violation of the law, *Inconstitutional? (4) Was the admission of evidence of attempts to purchase narcotics from the defendant reversible error? (5) Is the judgment contrary to the law? [1] 1. The title of chapter 202, Laws of

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 habitnal users of such drugs; to provide for the revocation of license of habitual users; to prowide. 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 on and repealing all acts in conflict hereWith.

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 several Montana cases, as well as cases from other jurisdictions; but they are not in point as respects the title of this 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 declared— that a title shall embody the exact limitations or."ualifications 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

based upon mere form or phraseology.'" State v. Anaconda C. M. Co., 23 Mont. 498, 59 Pac. 854

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

The unity of title required by this constitutional provision is served notwithstanding many provisions in an act, where they are germane to the general subject expressed. Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821; State v. McKinney, 29 Mont. 375, 74 Pac. 1095, 1 Ann. Cas. 579: In re Terrett, 34 Mont. 325, 86 Pac. 266. The Legislature is the judge, to a great extent at least, of the title which it will prefix to a bill; and the court has no right to hold a title void bacause, in its opinion, a better one might have been used. State v. McKinney, supra; section 88, Sutherland on Statutory Construction. Speaking of such constitutional limitation, Judge Cooley says:

“The general purpose of these provisions is accomplished when a law has but one general 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 “that under certain conditions the possession 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.

[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 Constitution. The title is meaningless. It reads:

“An act to amend section 3202 of chapter 202. of the Revised Codes of 1921, providing a penalty.”

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