Зображення сторінки
PDF
ePub

There is no way of determining from the title whether the purpose was to amend chapter 202 of the Laws of 1921, or section 3202 of the Revised Codes of Montana, 1921. It is to provide “a penalty,” but for what? Its title is silent and its reference to existing statutes so bungled as to leave uncertainty. The constitutional requirement is not satisfied unless the object of the legislation is clearly expressed in the title. State v. Mitchell, 17 Mont. 67, 42 Pac. 100; Western IRanches v. Custer County, 28 Mont. 278, 72 Pac. 659; State v. Brown, 29 Mont. 179, 74 Pac. 366. ,

[3] 3. Section 12 of chapter 202, Laws of 1921. provides:

“That it shall be unlawful for any person to have in his possession or under his control any of the drugs mentioned in this act, if such possession or control is obtained in a manner contrary to the provisions of this act.”

Then certain exceptions and exemptions are enumerated, and the burden of proof placed upon the accused to show that his possession of the prohibited drugs comes within the exemption of the statute. The defendant contends that his constitutional rights were invaded by the court in giving to the jury instruction No. 11, based upon this statute. The instruction reads as follows:

“You are instructed that it is unlawful for any person to have in his possession or under his control any derivative, compound, manufacture or sale of opium known as morphine, if such possession or control was obtained in a manner contrary to the laws of Montana, and such possession or control is presumptive evidence in and of itself of a violation of the laws of Montana.”

[4] Proof that the prohibited drugs were found in the defendant's possession by the statute is not made presumptive of any evidence of guilt. But in cases of possession of such drugs “obtained in a manner contrary to the provisions of this act,” the burden of proof of lawful possession is placed upon the defendant. It was shown that the witness Morgan but a few minutes before had contracted with the defendant for the purchase of morphine, had paid $15 therefor, and that the defendant agreed to deliver it through a hole in the fence. It satisfactorily appears that the morphine found in the defendant's possession at the time of his arrest was that which he was about to deliver to Morgan. Clearly such evidence was proper as part of the res gestao. The proof clearly showed the defendant to have been in possession of drugs contrary to the law, and it was not depriving him of any constitutional guaranty to advise the jury pursuant to the statute that possession of such drugs unlawfully is presumptive evidence of a violation of the law.

Prof. Wigmore, in his work on Evidence, says:

“There can be no vested right in a rule of evidence. Those rules are merely methods for ascertaining facts.” Volume 1, § 7.

[5] It is a well-settled rule that the Legislature may prescribe that which shall constitute prima facie evidence of guilt, and shift to the defendant the necessity of satisfactory explanation in the absence of express constitutional inhibition. State v. Lewis (Mont.) 216 Pac. 337. The accused has no vested right in any presumption or rule of evidence. Within constitutional limits the Legislature may change the rule at any time. The instruction given was warranted by the statute, and thereby defendant's constitutional rights were not invaded.

4. Proof of the attempt to purchase narcotics from the defendant immediately preceding his arrest for the unlawful possession of such drugs was proper in our opinion. It . was clearly a part of the res gestae. The proof shows that the state's witness Guerra, a few minutes before the defendant’s arrest, had given John Morgan a $20 bill with which to make purchase from the defendant of morphine and cocaine, and that upon the arrest of the defendant the identical bill was found in his possession. , Morgan testified he had given the bill to the defendant in purchase of narcotics a few minutes before. He testified:

“I was ordering some narcotics from him (the defendant) and gave him the money and walked out and was going to receive the stuff. * * * I " * * gave him (the defendant) the $20 bill which I got from Mr. Duggan and Mr. Guerra, and in change got from the defendant $5 in silver. There is a kind of a board fence in the back of the terrace which has got probably two inch holes, and I was supposed to receive the narcotics through there, but did not receive it, because Mr. Duggan came up before I could receive it.”

[6] The $20 bill was properly received in evidence in support of the charge against the defendant. Proof that the defendant had contracted to sell and deliver morphine for money paid to him was evidence of the fact defendant unlawfully possessed such drugs.

The rule is well stated by Bishop on Criminal Procedure, and approved by Prof. Jones, in his work on Flvidence, as follows:

“It is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible; and it is also admissible, if it really tends thus, as in the facts of most cases it does not, to prove the act itself.” Jones on Evid. vol. 1, p. 724, § 143.

[ocr errors][merged small]

It was instructed further that it could fix the defendant's punishment, “as explained in these instructions,” or leave it to be fixed by the court. The verdict fixed the defendant's punishment “at imprisonment in the state prison,” and the judgment decreed that he “be confined in the state prison at Deer Lodge.” The jury had the right to fix the punishment by their verdict (section 12027 Rev. Codes 1921), but should have had clearly pointed out the minimum and maximum punishment for the offense. Under the statute (chapter 202, Laws of 1921) the jury were at liberty to fix defendant's punishment by a fine in any amount not exceeding $1,000 “or by imprisonment for not more than three years, or by both such fine and imprisonment." Chapter 202, supra. But it was by the court instructed that in the event the defendant was found guilty, the jury, if it elected to fix ‘the punishment in the verdict, must assess a fine of not less than $500 nor more than $3,000 and imprisonment in the state prison for not less than one nor more than five years. Under the law the jury were at liberty to assess a fine anywhere from $1 to $1,000, or by imprisonment from One day to three years, either fine, or imprisonment, or both. “Instructions, whether right or wrong, when given, become, for the time being, the law of the case, binding upon the jury, the court and counsel.” 14 R. C. L. 822. We think the giving of such instruction erroneously stating the law as to the maximum and minimum punishment which the jury were at liberty to assess was highly prejudicial to the rights of the defendant. The jury, if properly instructed, might have been satisfied to impose merely a fine from $1 to $1,000 upon the defendant; but it was directed that, if it fixed the punishment on determination of the defendant's guilt, then it must assess a fine of not less than $500 and imprisonment in the state prison for not less than one nor more than five years. The defendant had a right to have the jury fix his punishment, and to do so they should be properly instructed in regard thereto. [*] Both the verdict and judgment are eroneous, as the offense is punishable under the act of 1921 as a misdemeanor, imprison*nt to be in the county jail of the county. State v. Toy, 65 Mont. 230, 211 Pac. 303. He *** committed to the state prison at Deer *dge and is now serving his sentence there Pursuant to the judgment. *~~

The judgment and order are reversed, and the cause is remanded to the district court of Silver Bow county, with directions to grant the defendant a new trial.

Reversed and remanded.

CALLAWAY, C. J., and COOPER, HOLLOWAY, and STARK, JJ., concur.

state v. Millen. (No. 5328.) (Supreme Court of Montana. Nov. 9, 1923.)

1. Intoxicating liquors 3-224–State prosecuting defendant for possession and transportation of “beer” not required to prove it fit for drinking. Under Rev. Codes 1921, § 11048, defining intoxicating liquor, the state in a prosecution for having possession of and transporting beer was not required to prove that it was fit for beverage purposes, since the words “fit for use for beverage purposes" within the statute are applicable only to the liquids enumerated following the words “in addition thereto,” and since beer is in fact a beverage.

IEd. Note.—For other definitions, see Words and Phrases, First and Second Series, Beer.]

2. Statutes & 159—Rule as to repeals by Implication in case of conflict stated. Repeals by implication are not favored, but when two legislative enactments relating to the same subject-matter are in conflict, and cannot be harmonized, the act last enacted controls.

3. Intoxicating liquors 6- 132—Statute as to penalty for liquor offenses held repealed by implication as to offenses subsequently created. Laws 1917, c. 143, § 34 (Rev. Codes 1921, § 11121), in so far as it prescribes the punishment for the unlawful possession and unlawful transportation of intoxicating liquor denounced by Laws Ex. Sess. 1921, c. 9, was impliedly repealed by section 28 of such act (Rev. Codes 1921, § 11075) notwithstanding section 39 (section 110S6), making act of 1921 supplemental to act of 1917.

4. Criminal law of 172(9) – Erroneous instruction as to punishment jury was authorized to assess held prejudicial error. Under Rev. Codes 1921, § 12027, authorizing the jury to declare the punishment when there is an alternative or discretion in regard to the extent of punishment to be inflicted, an erroneous instruction as to the punishment which the jury could prescribe in prosecution for having possession and transporting intoxicating liquor held prejudicial error on appeal from judgment rendered after jury had left the punishment to be fixed by the court, in which the court followed up the error by prescribing punishment not authorized by the statute.

[blocks in formation]

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

[ocr errors]

fully transporting intoxicating liquor, and he appeals. Reversed and remanded, with directions to grant new trial.

Victor R. Griggs, of Havre, and C. A. Spaulding, of Helena, for appellant.

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

CALLAWAY, C. J. Upon information, in two counts, the defendant was found guilty of unlawfully possessing intoxicating liquor, and of unlawfully transporting intoxicating liquor. The jury left the punishment to be fixed by the court. By its judgment the court

sentenced the defendant to imprisonment in,

the county jail for a term of 30 days and to pay a fine of $200 upon each count. Hence this appeal.

Defendant's points necessary to be considered are two: That the State failed to prove the liquor in question was fit for beverage purposes, and the court misdirected the jury as to the punishment and entered an erroneous judgment upon the verdicts.

I. The liquor which defendant was charg— ed with possessing and transporting was beer. That he did possess and transport beer is conceded, but his counsel insist that the case made out by the state is fatally defective, because the proof was insufficient to show that the beer was fit for beverage purposes,

[1] While it may be observed in passing that there was some testimony tending to show that the beer was fit for beverage purposes (there was no testimony to the contrary), we think the question sought to be presented is not debatable under the terms of section 11048, R. C. 1921. That Section reads as follows:

“When used in this act, or in any other laws of the state relating to intoxicating liquors, the word “liquor' or the phrase ‘intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, winous, Inalt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes; provided, that the foregoing definition shall not extend to dealcoholized wine, nor to any beverage or liquid produced by the process by which beer, ale, porter, or wine is produced, if it contains less than onehalf of one per centum of alcohol by volume, and is made as prescribed in section 11082 of this Code, and is otherwise denominated as beer, ale, or porter, and is contained and sold in, or from, such sealed and labeled bottles, casks, or containers as the secretary of state may by regulation prescribe.”

From the foregoing it is seen that the section embraces two classes of liquors the use of which is prohibited. The first class comprises alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine; the second “any spirituous, vinous, malt or fermented liquor,

liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containng one-half of one per centum or more of alcohol by volume, which are fit for use for beverage purposes.” The use of the words “and in addition thereto” is significant; compare the words “and any” used in a similar place in section 2, Laws of 1917, post, of which section 11048 is amendatory. The qualifying phrase “fit for use for beyerage purposes” relates only to the liquor, liquids, and compounds which follow the words “in addition thereto” in the statute. Such was the construction of section 2 of chapter 143, Laws of 1917, as given by this court in State v. Centennial Brewing Co., 55 Mont. 500, 179 Pac. 296. Section 2 read:

“The phrase ‘intoxicating liquors' shall be held and construed to include whisky, brandy, gin, rum,' wine, ale and any spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind or description, whether medicated or not, and whether proprietary, patented or not, which contains as much as two per centum of alcohol measured by volume, and which is capable of being used as a beverage.”

It will be noted that when section 2 was amended by the enactment of section 1 of chapter 9, Laws of 1921, now section 11048, supra, the word “beer” was added to the first class, while the second class was made still more specific. While the language following the word “provided” in section 11048 is not necessary to this inquiry, it is included in this opinion to show the full extent of the amendment made. The action of the Legislature in drafting section 11048 is a confirmation of the construction placed upon section 2, supra, by this court. Beer is a word as well understood as aro the words “brandy, whisky, rum, gin, ale, porter, and wine.” Beer is not merely capable of being used as a beverage, but is in fact a beverage, and, as was observed in State v. Centennial Brewing Co., supra, it is a contradiction of terms to speak of beer as not being capable of being used as a beverage. The beer in question carried an alcoholic content of 4% per cent. or over.

II. The court instructed the jury:

“That the punishment prescribed fer the offense contained in each of the counts in the information in this case is a fine of not less than $10 nor more than $500, or by imprisonment for not more than six months or by both such fine and imprisonment.”

That the foregoing instruction was erroneous the Attorney General concedes. He says:

“A careful examination of the statutes of this state dealing with the subject of intoxicating liquor fails to disclose any other penalty for the offense of illegally possessing or transporting intoxicating liquor except that provided by section 11075, R. C. M. 1921.”

That section fixes a maximum penalty of $500 for a first offense for each of the crimes charged in the information. With the Attorney General's conclusion we agree. The of— fenses of possessing and transporting intoxicating liquor came into our statutes with the enactment of chapter 9, Laws of the Extraordinary Session of 1921, section 11075 being section 28 of the act. The instruction was based upon section 11121, R. C. 1921, enacted as section 34 of chapter 143, Laws of 1917. By the provisions of section 39 of chapter 9, supra, now section 11086, R. C. 1921, “this act,” chapter 9, “shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors." But it cannot be held that the penalty prescribed for a wrong first prohibited by chapter 9, which also provides a penalty for that wrong, is governed by another and prior statute which was not intended to govern the punishment of an act not then prohibited, In so far as a penalty is prescribed for the offenses in the instant case the provisions of Section 11075, a part of the 1921 act, and section 11121, a part of the 1917 act, are in conflict. It is not possible to harmonize them. 11075 cannot be treated as supplemental to 11121. It does not add anything to 11121. It does not serve to supply anything that is lacking; on the contrary, it serves to minimize rather than augment the provisions of 11121. It cannot be held that a section supplements another with which it is in conflict. See State v. Bowker, 63 Mont. 1, 205 Pac. 961. [2] While repeals by implication are not favored, when two legislative enactments relating to the same subject-matter are in conflict, and cannot be harmonized, the act last enacted tontrols. United States v. 196 Buffalo Robes, 1 Mont. 489; State ex rel. Wynne W. Quinn, 40 Mont. 472, 107 Pac 506. [3] Therefore the provisions of section 11121, in so far as they relate to offenses first provided by chapter 9, supra, must be held to be repealed by section 11075. It follows that the penalty for the offenses considered in the instant case is provided by the section 11075, which came into being simultaneously with the acts sought to be prohibited. [4] The error in instruction No. 2 is manitest, and was prejudicial to the defendant. In addition to misdirecting as to the fine, it told the jury that the offenses charged were punishable “by imprisonment for not more than six months or by both such fine and Imprisonment.” Section 12027, R. C. 1921, provides:

(220 P.)

"In all cases of a verdict of conviction for *ny offense, when by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted, the jury may assess and declare the punishment in their "ordict; and the court must render a judg*nt according to such verdict, except as hereinafter provided.” *

It was the defendant's right to have the jury assess the punishment upon a correct statement of the law as to the penalty prescribed for the offenses charged. Williams v. State, 7 Okl. Cr. 529, 124 Pac. 330. This the jury might have done had the court given it the proper instruction. Under some conditions a misdirection of the jury may not be prejudicial to the defendant (Ballentine V. State, 48 Ark. 45, 2 S. W. 340; State v. Burr, 81 Mo. 10S ; Parker v. State, 43 Tex. Cr. R. 526, 67 S. W. 121; O'Docharty v. State [Tex. Cr. App.] 57 S. W. 657; Mitchell v. Commonwealth, 75 Wa. 856), but here the prejudice is not only apparent, but the court followed up the error by fixing the punishment as stated above. Under the circumstances the provisions of section 12028, R. C. 1921, may not be summoned in aid of the judgment, nor are the decisions of In re Collins, 51 Mont. 215, 152 Pac. 40, and like cases cited by the Attorney General, applicable here.

The judgment is reversed, and the cause is remanded to the district court of Hill county, with directions to grant the defendant a new trial.

Reversed and remanded.

COOPER, HOLLOWAY, GALEN, and STARK, J.J., concur.

weibuSH v. JEFFERson CANAL co. - (No. 5287.)

(Supreme Court of Montana. Nov. 3, 1923.)

1. Pleading &=48–Complaint sufficient of facts are stated so as to advise defendants of the nature, source, and extent of the cause of action. Plaintiffs are only required to set forth the essential facts of their case with reasonable precision and with particulars enough to advise the defendants of the nature, source, and extent of the cause of action, the complaint being sufficient if it is easy of comprehension and free from reasonable doubt.

2. Waters and water courses <=17901)-complaint for injury to property by water from canal held sufficient. Complaint alleging that the defendant canal company negligently failed to keep canal clear of weeds and other obstructive material, that such negligence lessened the canal's carrying capacity, that the defendant negligently deposited more water into the canal with such obstructions therein than it now was able to carry, and that the water flooded and injured plaintiffs' ranch property, held to state a cause of action with sufficient certainty.

3. Pleading 3-406(7)—Complaint held suffi. cient as to property injured in absence of motion to have it made more specific or request for bill of particulars. In ranch owners' action for damage caused by flood of water from defendant's canal, the complaint held sufficient as against the contention that it did not specify the amount of injury done to each piece of property damaged separately, and that it charged in one cause of action damages to both real and personal property without segregating and separately stating and numbering the paragraphs, in the absence of a motion to make the complaint o specific or a request for a bill of particuars.

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

4. Pleading 8-316–Granting of request for bill of particulars is discretionary with court. The granting of a request for a bill of particulars rests within the sound discretion of the Court.

5. Action 3-45(3)-Statute authorizing join

der of causes of action for “Injuries to

property” construed.

Rev. Codes 1921, § 9130, authorizing a

plaintiff to unite several causes of action in the same complaint when they arise out of “injuries to property,” held applicable to both real and personal property and to include every form of action for an injury, as distinguished from a wrong by breach of contract, except libel, slander, and malicious prosecution.

[Ed Note.—For other definitions, see Words and Phrases, First and Second Series, Injury to Property.]

6. Appeal and error S-544(1)–Evidence and proceedings not considered in absence of bill of exceptions. The evidence and proceedings upon the trial will not be considered in the absence of a bill of exceptions.

Appeal from District Court, Jefferson County; Joseph C. Smith, Judge.

Action by August H. Weibush and another against the Jefferson Canal Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Clarence Hanley and Charles E. O'Neil, both of Butte, for appellant.

J. E. Kelly, of Dillon, and Howard A. Johnson, of Boulder, for respondents.

* COOPER, J. In the complaint it is alleged that the plaintiffs owned a ranch in Jefferson county, of the value of $16,000, describing it; that there was standing upon the premises a house which was occupied by the plaintiffs as their residence, of the value of $4,000; that the dwelling was surrounded by a beautiful lawn, shrubbery, flowers, and other plants growing thereon, of the value of $500; that of the farm four acres were good agricultural and gardening lands, of the value of $800. In separate paragraphs there are averments descriptive of the property used in connection with the ranching operations of the plaintiffs which was damaged or destroyed, as follows: Rhubarb, berry and fruit bushes, and other perennial fruit-bearing shrubbery, of the value of $500; household furniture, cooking utensils, linens, linoleum, bedding, household supplies “a great

number of chickens, a large quantity of hay and grain, harvested and stacked, stored and situated in and about the dwelling and outbuildings, of the value of $2,000;” cabbages, potatoes, and other vegetables, of the value of $500; that there were standing on the premises chicken houses, outhouses, stables, sheds, barns, fences, gates, yards, walks, and other usual conveniences and necessities for the farm, of the value of $1,000; that plaintiffs also had on the premises numerous irrigating ditches, of the value of $250; that the defendants owned a certain water ditch or canal conveying large quantities of water from Jefferson river and Pipestone creek, which was badly constructed of loose gravel, sand, and soil, with no spillways to carry off surplus water; that grasses, mosses, and other débris were permitted to grow and accumulate in the canal and to obstruct the passage of the water; that greater quantities of water than the ditch would carry were turned into it, by reason whereof the ditch and canal broke and the water flowing therein ran over the top and damaged or destroyed $4,000 worth of the plaintiff's property which was then upon their land and premises. The demurrer to the complaint is: First, that the complaint does not state a cause of action; second, that it is (a) ambiguous, (b) uncertain, and (c) unintelligible, in that (1) it charges in one cause of action damages to both real and personal property without segregating and separately stating and numbering the paragraphs, and (2) that it does not specify the amount of the injury done to each piece of property damaged, separately. The demurrer was overruled ; the defendants filed an answer containing a general-denial of all the averments of the complaint; the cause was tried; the jury returned a verdict for $2,200 and judgment was entered in favor of plaintiffs. The defendants made a motion for a new trial, which was overruled, and they now appeal from the judgment. After the record was filed here, the court sustained the respondents' motion to strike from the transcript on appeal what purports to be a bill of exceptions upon the ground that the proceedings in the trial court had never been settled and exemplified by the judge as the law requires. The case is therefore in this court upon the sole question whether the complaint is defective in the particulars set forth in the demurrer. [1, 2] The plaintiffs are only required to set forth the essential facts of their case with reasonable precision and with particulars enough to advise the defendants of the nature, source, and extent of their cause of action. The complaint, in substance, avers that the injuries to plaintiff's ranch property were due to loose material with which the ditch was constructed, the negligence of the defendants in failing to keep it clear of weeds and

other obstructive material which lessened its

&=>For other cases see same topic and KEx-NUMBER in all Key-Numbered Digests and Indexes

« НазадПродовжити »