190 P. 247 | Idaho | 1920
Appellant was accused of unlawfully possessing and transporting intoxicating liquor. He demurred to the information on the ground, among others, that more than one offense was charged therein. The demurrer was overruled and, at the trial, he objected to the introduction of any evidence on the same ground. After plea and before the introduction of evidence the following occurred:
By Mr. Eustace: “At this time the defense will ask that the court require the state to elect upon which charge of the information this prosecution will be had. The information charges possession and transportation and a demurrer to this information has been filed and passed upon by this court, and as the information now stands it charges possession and transportation.”
By Mr. Stone: “The prosecution in this case elects to stand upon the charge of possession.”
Appellant was not called on to again plead and now insists the election by the prosecuting attorney was such a material amendment as to amount to lodging A new information and that, therefore, the case was tried without an issue of fact having been framed.
The plea of not guilty placed in issue every material allegation of the information, including the charge on which the state elected to stand and for which appellant was tried.
If we adopt the theory that the information as filed was defective in that it charged more than one offense, the defect was cured by the state’s election. C. S., secs. 9084 and
Sec. 9084: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
Sec. 9191: “Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. ’ ’
An act of the thirteenth session of the legislature known as Senate Bill 50, approved February 18, 1915 (Sess. Laws, 1915, chap. 11, p. 41), defines the term “prohibition district” and makes it unlawful for any person to have in his possession or to transport any intoxicating liquor within a' prohibition district, unless the same is procured, possessed and transported under a permit therein provided for. The same legislature enacted House Bill 142, approved March 1, 1915 (Sess. Laws, 1915, chap. 28, p. 83), which is as follows:
“Section 1. The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the State of Idaho.
“Section 2. The State of Idaho is hereby constituted a prohibition district, and all statutory provisions now or which may hereafter be in force in prohibition districts, so far as the same are not inconsistent herewith, are made applicable and operative for the enforcement hereof.
“Section. 3. This Act shall be in force and take effect on and after January first, 1916.”
Appellant insists that because section 1 of the act above quoted prohibits the manufacture, disposal and transportation of intoxicating liquor for beverage purpose, the portion of chapter 11, supra, prohibiting possession of it is repealed by implication and that on November 25, 1916, the date of the commission of the act of which he was convicted, it was not a crime to possess intoxicating liquor.
It cannot be said that the two acts here under consideration are in conflict. When read and construed together they prohibit the manufacture, disposal, transportation and possession of intoxicating liquor in the state of Idaho. (In re Crane, 27 Ida. 671, at 694, 151 Pac. 1006.)
Other points are presented in appellant’s brief, but we do not find them to be meritorious. The judgment appealed from is affirmed.
