73 Colo. 99 | Colo. | 1923
delivered the opinion of the court.
McCONNELL was convicted of a second violation of the liquor law, S. L. 1915, Ch. 98, as amended in 1917 and 1919.
The information set forth a previous conviction, under the Act of 1915 as amended by the Act of 1917 and as amended by the act of 1919, and then charged that McConnell on the 13th of May, 1922, transported intoxicating liquor within the state of Colorado.
The only points we deem it necessary to notice are as follows:
1. The act of 1915, by §§ 7 and 8 forbids the transportation of intoxicating liquor within the state. S. L.
2. It is urged that the plaintiff in error was wrongly convicted of a second offense, because the former offense was sale while this was transportation of liquor and that they are different offenses, denounced as such by different sections of the statute.
Section 22 of the act' of 1915 reads:
“Any person * * * who shall violate any of the provisions of this act * * * shall for the first offense * * * be punished by a fine * * * or by imprisonment in the county jail * * *. Every second and subsequent offense, committed within five years of the first * * * shall be deemed a felony * * and be punished by imprisonment in the penitentiary.
Counsel cite State v. Maltais, 75 N. H. 248, 72 Atl. 1023, but the statute there under consideration referred
3. Plaintiff in error complains that the information does not charge that the accused knowingly and wilfully committed the offense. The information could “be easily understood by the jury” and that is enough. R. S. 1908, § 1950. And since the information charges the act as “unlawfully and feloniously” done, the objection does not affect the real merits. R. S. 1908, § 1956. Campbell v. People, 72 Colo. 213, 210 Pac. 841.
4. One Willy was allowed to testify for the People that he had some time before the acts in question been employed by the accused to carry intoxicating liquor. It is claimed that this was error. In view of the testimony drawn out by the cross-examination of the witness Wyatt that the defendant did not know what was in the truck, and of the present claim of his counsel that he was thus ignorant, the evidence of Willy was relevant and competent. The case is an exact analogy to the leading cases on this point where the prisoner, accused of selling bogus jewels or other things, claims he did not know they were false. The evidence that he has sold other false articles is held to be proper to show guilty knowledge, intent or design. Wig. Ev., § 300 et seq. Colorado has followed these decisions. Elliott v. People, 56 Colo. 236, 242, 138 Pac. 39; Housh v. People, 24 Colo. 262, 50 Pac. 1036; Warford v. People, 43 Colo. 107, 90 Pac. 556; Castner v. People, 67 Colo. 327, 184 Pac. 387; Bush v. People, 68 Colo. 75, 187 Pac. 528.
It is claimed that the court in holding the information good, determined that intent was immaterial and that therefore the evidence of Willy was irrelevant; but defend
5. It is claimed that instruction No. 6 was erroneous. It was that Willy’s evidence—
“Was offered and received not for the purpose of convicting the said defendant of those other offenses but for the purpose of showing only the intent, plan or design of the defendant and for such bearing as it may have in that way upon the guilt or innocence of the defendant of the charge made in the information. The defendant can only be convicted, if at all, of the offense charged in the information and no other.”
The usual and better way to state the point is that the evidence is competent to show “knowledge, intent or design.” In this case the court did not use the word “knowledge” but the jury could not have been misled. The question of intent, that is, whether defendant intentionally carried liquor, depended on whether he knew he was carrying it.
Judgment affirmed.
Mr. Chief Justice Teller and Mr. Justice Whitford concur.