230 P. 1001 | Cal. Ct. App. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *96 The defendant was convicted in the superior court of Sacramento County of the crime of having in his possession a certain quantity of intoxicating liquor for beverage and not for sacramental or medicinal purposes, and he appeals from the judgment of conviction and the order denying his motion for a new trial.
The information, in addition to charging that the accused, in the month of June, 1923, had in his possession intoxicating liquor of the interdicted alcoholic content, set up two alleged prior convictions of the defendant of a like charge, as follows, to wit: 1. That the said Pagni, before the commission of the offense charged in the information was, on the eighteenth day of May, 1923, in the police Court, in the city of Sacramento, county of Sacramento, state of California, convicted of having in his possession intoxicating liquor, "suitable for beverage purposes" and of contraband alcoholic content; 2. That the defendant, prior to the "commission of the offense charged in this information, was, on the tenth day of October, 1922, in the United States District *97 Court, Northern Division," convicted of unlawfully possessing intoxicating liquor of the proscribed alcoholic content.
Upon his arraignment the defendant admitted having suffered the two previous convictions charged but interposed a plea of not guilty to the charge of possession as alleged in the information.
There are several assignments of error, of which the first presented and discussed in the briefs involves the contention that the second prior conviction set forth in the information is not, as applied to a prosecution under the state law, known as the Wright Act, for a violation of its provisions, "a prior conviction." In other words, it is the claim that a conviction in the federal court under the Volstead law, which is a federal statute, cannot be set up as in aggravation of punishment against one subsequently prosecuted for committing a like prohibited act under the state law. It is further contended that, even if it were true as a legal proposition that a conviction in a federal court of an offense made so by an act of Congress could be pleaded as in aggravation of the punishment of one who, subsequent to such conviction, is charged with and prosecuted for a like offense under a state law, it was improper to charge in the information here the alleged second previous conviction for the reason that the offense of which the defendant was convicted was committed by the defendant and his conviction thereof took place before the state law (the so-called Wright Act) went into effect.
The points thus made are of vital importance in this case in view of the provisions of section 29 of the so-called Wright Act (Stats. 1921, p. 79), adopted by our legislature into said act from the so-called Volstead Act (U.S. Stats. at Large, vol. 41, pt. 1, p. 305, at 316), which was enacted by the Congress of the United States under the authority and for the purpose of enforcing the provisions of the eighteenth amendment to the federal constitution. That section reads as follows: "Any person . . . who violates any of the provisions of this title, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500.09; for a second offense not less than $100.00 nor more than $1000.00, or be imprisoned not more *98 than ninety days; for any subsequent offense he shall be fined not less than $500.00 and be imprisoned not less than three months nor more than two years."
It will be seen that for a third offense under the Wright Act the offender may be given a much greater punishment than where the offense has been committed for the first or second time. While the court is limited in the punishment of the offender for the first offense to the imposition of a fine not to exceed five hundred dollars, and for a second offense to a fine of not less than one hundred dollars nor more than one thousand dollars, or imprisonment not to exceed ninety days, for the third offense of which he may be convicted, the punishment may be by fine of not less than five hundred dollars or imprisonment not less than three months nor more than two years.
[1] 1. While it is true that the penal provisions of the Wright Act were adopted, by reference, from the Volstead Act, the former is in the strictest sense a state law. The two acts represent different and distinct sovereignties, and it has been held that the conviction of a person for an act in violation of the provisions of a state prohibition statute will not operate to bar his prosecution, conviction of and punishment in and by the federal courts under the Volstead law for the commission of the identical act for which he has suffered conviction and punishment under the state law, there being no special provision in the Volstead or any other federal statute providing for a bar in such cases. This rule is declared in numerous cases from both federal and state jurisdictions, but it is enough to refer to the case of United States v. Lanza,
2. In view of the conclusion arrived at as to the above-considered objection to the setting up against the accused of the federal court conviction as in enhancement of his punishment, it is not absolutely necessary that the second ground of objection to that course should herein be examined and determined. Indeed, there will not likely arise any cases growing out of violations of the Wright Act in the future in which such a ground of objection will exist. But it is conceived not to be improper to state herein that said ground of objection seems to be sound in principle. We have found no cases directly in point. This court will take judicial notice of these facts (sec. 1875, Code Civ. Proc.): That the Wright Act was passed by the legislature in the month of May, 1921, and approved by the governor on the 7th of said month (Stats. 1921, p. 79); that it was delayed from going into effect by the referendum provisions of section 1 of article VI of the constitution, petition therefor, *101
with the required signatures, having been filed with the Secretary of State; that the act under the referendum petition was voted upon and approved by a majority of the people at the general election held throughout the state on the seventh day of November, 1922; that the act did not become Operative or go into effect until five days after the date of the official declaration of the vote by the Secretary of State (Const., sec. 1, art. VI), which declaration was made on the sixteenth day of December, 1922. It will thus be noted that the prior conviction in the federal court, alleged in the information here, was obtained over two months before the Wright law went into effect. In other words, the specific offense with which the defendant is charged in the information did not exist when the federal prior conviction was had. [6] It follows, therefore, that to permit the setting up of said prior conviction against the defendant for the purpose of increasing his punishment beyond what otherwise it could be would impart to the provisions of the Wright Act as to prior convictions, so far as is concerned the present case, an ex post facto operation, contrary to the strict mandate of the federal constitution (U.S. Const., sec. 1, art. IX), as well as that of our state organic law. (Sec. 16, art. I. See, also, Ex parte Medley,
The above points were raised on the demurrer to the information. There are other grounds of objection to that pleading, but to those there is absolutely no merit.
If what we have considered above was all that there was against the judgment and the order, it would be necessary only to order a remission of the case to the court below for the rendition and pronouncement of a proper judgment — a judgment founded on the conviction of the accused of the offense charged, with the prior conviction of a like offense in the police court of the city of Sacramento, and *103 that obtained in the federal court eliminated. For another reason, however, it is found necessary to remand the case for a new trial. There are a few assignments involving attacks upon certain instructions given to the jury by the court which it is well enough to notice before we proceed with the consideration of the assignment which, we are convinced, calls for a reversal of the judgment and the order.
[7] In an instruction given by the court substantially in the language of section 33 of the Volstead Act, the court stated that, in prosecutions such as the one we have here under the Wright Act, the burden was upon the accused to show that the intoxicating liquor with the unlawful possession of which he is charged was lawfully acquired, possessed, and used by him. Precisely the same instruction was given in the cases of People
v. Mattos,
[8] In another instruction the following appears and was read to the jury: "All the provisions of this act shall be liberally construed to the end that the use of intoxicating liquors as a beverage may be prevented." This language merely involves the statement of a rule of statutory construction, as applied to the prohibition acts. Juries are not concerned with rules of statutory construction. These are for the guidance of the courts in construing or applying the provisions of statutory enactments, while the sole function of the jury is to consider the facts and formulate a judgment with respect thereto under the guidance of appropriate statements of the law by the court. Such an instruction *104 might lead a jury of laymen to assume that, in passing upon the question of the guilt or innocence of persons charged with violating the provisions of the prohibition statutes, the degree of proof that is required in all criminal cases to establish guilt is not in all its strictness to be applied or observed. We are not to be understood as holding that the errors committed in the instructions above considered are of themselves of sufficient gravity to compel a reversal of the case. This question, if passed on, would have to be considered and determined by the light of the record as a whole. Of them we have written principally for the reason that it is desirable that the trial courts should be impressed with the understanding that the one first noticed was not pertinent to a case of this character and that the last considered not pertinent to any criminal case, and that the giving of them in some cases might, by reason of the peculiar circumstances thereof, require a reversal.
[9] We now reach the consideration of an episode occurring during the course of the trial which imperatively demands a reversal. After the defendant, taking the witness-stand in his own behalf, had testified in chief, and had been asked several questions on cross-examination by the district attorney, the court, addressing the accused, interrupted as follows: "I am going to call this witness' attention to — first now, I am going to call your attention to the fact that, in these liquor cases, we have had a lot of testimony here in various times that is very questionable, and the court is, hereafter, when some of this testimony comes in, with the court to say whether or not it is true, the court is going to direct the District Attorney to submit that testimony to the Grand Jury, with the purpose or the view, at least, of obtaining indictments for perjury." Witness: "Yes." The Court, proceeding: "And I am going to tell you that now in advance, so that you will understand" — witness interposing, "Yes" — Court continuing, "what to expect." The implication plainly carried by the court's remarks was that, other witnesses and defendants in liquor cases tried before that court in the past having committed perjury in their attempt to fortify pleas of not guilty, the defendant would be disposed to do likewise or perhaps had, on his direct examination, *105 given false testimony and would, unless warned in the manner adopted by the court, remain faithful on cross-examination to what he (the witness) knew to be an untruthful story. At any rate, the jury could well have understood the remarks to mean that all "bootleggers," so to speak, when undergoing trial for infractions of the prohibition statutes, would commit perjury, if necessary to escape conviction, and that the defendant here was within the censures involved in that statement, or that he, too, would not be restrained by his conscience to lie under oath to accomplish his acquittal. There cannot be the slightest doubt that by the remarks of the court the defendant was put in a most unfavorable light before the jury. Indeed, it is plainly manifest that the effect of said remarks was to deny to the defendant that fair trial which is guaranteed by the laws of the land to him and all others charged with crime and tried therefor. And particularly in this case must such remarks be held to have been seriously detrimental to the accused; for, while the testimony produced by the People is sufficient to support the verdict, the case, as made by the People, is not, evidently, overwhelmingly strong against the accused. The police officers who raided his place and arrested the defendant found, among a large number of empty bottles, one bottle which contained little more than a trace of intoxicating liquor. The defendant, in the previous month of May, was arrested and charged with having in his possession intoxicating liquor and was tried for, convicted of, and punished for the offense. At the trial of the instant case he testified on his direct examination that the liquid in the bottle referred to was vinegar and was in his possession at the time the former raid of his place and his arrest were made and had remained there untouched until the arrest on the present charge. It was, of course, for the jury to believe or disbelieve that story, but it should have been left to be by them considered in a state of mind wholly free from any bias or prejudice against it other than that generated in their minds by the manner in which the defendant himself told it. The remarks of the court could not have left the jury in that state of mind with respect to the defendant's testimony. *106
The judgment and the order are reversed, and the cause remanded for a new trial, with the allegation as to the prior conviction in the federal court stricken and eliminated from the information.
Plummer, J., and Finch, P. J., concurred.