State v. Hall

190 P. 251 | Idaho | 1920

RICE, J.

The appellant was convicted of the crime of having in his possession intoxicating liquor. The information upon which he was tried and convicted contains three counts, as follows: Transporting intoxicating liquor; possession of intoxicating liquor for beverage purposes, and possession of intoxicating liquor.

To this information appellant filed a demurrer, among several grounds setting up the following: That more than one offense is charged in said information; that said information segregates one act or omission into three separate and distinct offenses as set forth in the three causes of action thereof. This demurrer was overruled.

At the opening of the trial, the appellant moved to require the state to elect upon which charge it would go to trial, which motion was overruled. At the close of the state’s testimony, the motion to require the state to elect was renewed, and denied by the court.

The court instructed the jury in part as follows: “Should the jury believe from the evidence beyond a reasonable doubt that the defendant is guilty of any one or more of the offenses charged in the information, he may be convicted of one or more of such offenses; and the failure of the jury to find guilty under any count shall be deemed an acquittal of the defendant of the offense contained in such count. And the defendant may be found not guilty of one or more of said offenses.”

The jury convicted the appellant upon the three counts charged in the information, whereupon a motion in arrest of judgment was made, setting up among other grounds, the following: “That the defendant has been convicted -of three separate and distinct offenses based upon one act, and therefore subject to three separate punishments for one crime.”

This motion was granted as to two of the counts and the prosecuting attorney directed to elect upon which charge h'e desired appellant sentenced. He thereupon elected to have appellant sentenced upon the charge of possession of intoxicating liquor.

The offenses charged in this information, not relating to the sale of intoxicating liquor, do not come within the provisions of C. S., see. 2642, and it was error for the Court to overrule the demurrer, as well as to refuse to require the state to elect. (State v. Bilboa, ante, p. 128, 190 Pac. 248.)

The defect in the information complained of, having been made the subject of demurrer, was not waived and the motion in arrest of judgment should have been granted. The action of the trial cóurt in sustaining the motion as to two of the counts did not render this error harmless. The motion being good as to two of the counts was equally well taken as to the third.

Other assignments of error are urged. In the case of State v. Bilboa, supra, similar assignments are considered and decided.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Morgan, C. J., and Budge, J., concur.