204 P. 204 | Idaho | 1922
Appellant was convicted of the crime of having in his possession intoxicating liquor. On November 29, 1918, an information was filed against him, charging transportation and possession of intoxicating liquor. A demurrer to the information, upon the ground that more- than’ one offense was charged therein, was overruled, to which ruling the defendant excepted and thereupon pleaded not guilty to the information. At the close of the state’s case, the court required the state to elect upon which charge it would stand, and the state elected to rely upon the charge of possession of intoxicating liquor, of which appellant was thereafter convicted and sentenced to serve a term in the copnty jail and to pay a fine of $150.
This appeal is from the judgment and an order denying a motion for a new trial. Appellant makes thirteen assignments of error, attacking the action of the trial court in overruling appellant’s demurrer to the information and renewals thereof at each step in the proceedings, in admitting certain exhibits, in giving two instructions,. in overruling and denying a motion in arrest of judgment and the motion for new trial.
The principal question presented by this appeal is whether the court erred in overruling appellant’s demurrer to the information.
C. S., see. 8829, provides that an indictment must charge but one offense, and by C. S., sec. 8812, it is provided that
The offenses charged in the information, not relating to the sale of intoxicating liquor, do not come within the provisions of C. S., sec. 2642, and it was error for the court to overrule the demurrer. (State v. Hall, 33 Ida. 135, 190 Pac. 251.)
In view of the conclusion which we have reached, it is unnecessary to discuss,the remaining assignments of error. The judgment and order appealed from must be reversed, and the cause is remanded with directions to sustain the demurrer and make such further orders as may be found advisable.
