56 Wash. 469 | Wash. | 1909
The appellant was tried and convicted in the justice court of Chelan county, upon a complaint charging him with having sold intoxicating liquors to a minor. Upon an appeal to the superior court of that county, he was again found guilty. From a judgment entered on the verdict, he prosecutes this appeal.
It is contended that, if the complaint charges an offense at all, it charges four offenses. In support of this assignment, reference is made to Bal. Code, § 6844, which provides that, “the indictment or information must charge but one crime.” This is ground for demurrer (Bal. Code, § 6896), and no demurrer was interposed; but we will treat the objection as having been properly raised.
In State v. Butts, 42 Wash. 455, 85 Pac. 33, the information charged that two persons named therein stole two hundred and fifty posts, the property of B, and one hundred posts, the property of P. There, as here, it was urged that two offenses were charged. The court held, however, that the reasonable inference was that all the posts were taken at one time, constituting but one crime. The reasonable inference in this case is that the beer was sold jointly to all
The verdict found the defendant guilty of selling intoxicating liquors to Stanley Nagley “as charged in the information.” The language of the verdict is criticised, (1) because the case was tried on a complaint and not upon an information, and (2) because the state, at the close of its case, elected to stand on the sale on September 12, 1908, whilst the complaint charged that the sale was made on or about that date. The first objection is without merit. The words “complaint” and “information” were used interchangeably throughout the trial, and no prejudice resulted to the appellant therefrom. In support of the second ground of the objection, it is said that the code (Bal. Code, § 6961), provides a form of verdict. The language of the statute clearly shows that the form prescribed is only directory. It is further urged in this behalf that the verdict should conform strictly to the state’s election. We will refer to this point later in discussing an objection to one of the court’s instructions.
It is contended that the evidence is insufficient to support the verdict, and it is argued that only one witness testified to the sale, whilst the barkeeper and Nagley testified that there was no sale, and that the testimony of the state’s witness is unreasonable. He testified, however, that on September 12, 1908, the appellant’s bartender in his presence sold beer to young Nagley. On cross-examination he said that he knew from its appearance and “smell” that it was beer. The testimony was competent, and the jury evidently believed it and rejected the testimony of the appellant’s witnesses. The credibility and veracity of the several witnesses were for the jury to determine, and we cannot review the evidence for the purpose of determining its weight where there is competent evidence to support the verdict.
The father of Stanley Nagley testified that he had not
Error is assigned on the failure of the court to instruct the jury that “before you can find the defendant guilty, you must find from the evidence beyond a reasonable doubt that on September 12, 1908, Stanley Nagley purchased beer of Mr. Huff at defendant’s saloon, and that said beer was intoxicating.” The court instructed:
“(3) You will notice that the complaint alleges that intoxicating liquor was sold to four different persons on September 12, 1908. It is not necessary for the state to prove a sale jointly or Severally to each and all of these four persons. If a sale of intoxicating liquor was made to one of the persons named, at the time, and place, and under the conditions charged in the complaint it is sufficient.
“(4) The prosecution has elected to rely on the alleged sale to Stanley Nagley, and before you can bring in a verdict of guilty in this case you must be satisfied from the evidence beyond a reasonable doubt that the sale alleged in the information was in fact made to Stanley Nagley, at the time and place, and under the conditions, alleged in the complaint; and it is not sufficient to show, merely, that a sale was made to the other persons named in the complaint. In other words, you are to' try this case as though Stanley Nagley were the only person to whom it is alleged intoxicating liquor was sold,”
and further, in substance, instructed that the state was required to prove a sale on or about September 12, 1908. The instructions read together, as they must be, clearly informed the jury that the question for them to determine was whether a sale was made to Stanley Nagley on or about September 12. The state having elected to rely upon a sale made on
Complaint is made that the court committed error in defining the word “knowingly.” In substance, the court said to the jury that the sale was made knowingly within the meaning of the statute, if the appellant’s bartender knew or, in the exercise of reasonable prudence should have known, that Nagley was a minor at the date of the alleged sale. The word was correctly defined. State v. Constantine, 43 Wash. 102, 86 Pac. 384, 117 Am. St. 1043.
Stanley Nagley testified that he did not buy beer or other intoxicating liquors of appellant on September 12. On cross-examination, against the objection of the appellant, he said that he had been drinking that evening. This is assigned as error. The inquiry was proper as touching the memory of the witness as to what occurred on that evening, and as a circumstance tending to impeach his testimony. Other minor questions presented in the brief do not merit separate consideration.
We have found no error in the record, and the judgment, will be affirmed.
Rudkin, C. J., Fullerton, Chadwick, and Morris, JJ., concur.