15 P.2d 396 | Idaho | 1932
Defendant and appellant, Annie E. Arnold, was charged with selling intoxicating liquor to one Robert Smith. The state's evidence showed that upon March 20, 1931, Smith went to appellant's house and there purchased from her a bottle of beer, part of which he drank upon the premises; that later in the day he was apprehended with the partially emptied bottle upon him; that, armed with both a warrant of arrest and a search-warrant, certain officers about 1 or 2 o'clock P. M. on the following day proceeded to appellant's home, placed her under arrest and thereafter, before mentioning or ever exhibiting the search-warrant, secured her permission to make a search, which resulted in the discovery of 44 bottles of beer, a 15 or 20 gallon jar *351 full of brew, and many empty gallon and half-gallon jars and flasks. From the judgment of conviction following a jury trial, she has appealed, assigning two errors only, that of the admission of all evidence touching the articles discovered in her house and the giving of state's Instruction No. 5.
It is insisted that, since the articles so discovered in appellant's home operated to establish possession, a separate and distinct offense from that charged in the information, all evidence concerning them was both incompetent and irrelevant. Many cases are cited in support of this contention but in none of them did the evidence assailed have any "logical connection" with the crime charged. Here, not only is there evidence of contraband available for sale in large quantity, but available in such close proximity to the sale alleged that the ordinary mind cannot escape putting two and two together.
Declaring that: "Where the defendant is charged in the information solely with a specific sale of intoxicating liquor it is error to admit evidence of unlawful possession of intoxicating liquor at a subsequent date," appellant submits with finality the announcement of Hughes v. State, (Okl. Cr. App.)
But, it is further contended that the evidence was inadmissible in that it was secured by means of a defective search-warrant. To this proposition, conceding that the search-warrant was defective, there are three answers. No timely motion was made to suppress the evidence. Objection *352
to the use of such evidence must be made before trial, unless it is made to appear that the first notice to the accused of a possible violation of his right is during the course of the trial, or where a proper motion had been made before trial and denied, neither of which exceptions are available under the facts here presented. (State v. Severns,
Finally, the search and seizure were had after appellant's arrest for the crime charged: they were incidental to the arrest and required neither search-warrant nor consent.State v. Myers,
Instruction No. 5, complained of, recited:
"Certain evidence has been given before you concerning a search of the defendant's residence on the 21st day of March, 1931, and what was found there. The fact that this evidence may tend to establish the commission of another or other offenses, on the part of the defendant, *353 than that charged in the information (if it does tend to establish any other offense or offenses) is not to be taken into consideration by you in arriving at your verdict in this case. In this case you are concerned solely with the question of whether or not the defendant is guilty of the offense charged in the information. And the fact that she may have committed some other offense or offenses at some other time or place, will not justify her conviction of the offense charged in this case, and no juror should allow himself to be to any extent influenced by such fact in arriving at his verdict."
This was not only a correct statement of the law but was highly favorable to defendant.
Judgment affirmed.
Budge, Givens, Varian and Leeper, JJ., concur.