115 Wash. 543 | Wash. | 1921
The defendants in this case were charged, tried and convicted of the crime of being jointists. From the judgment and sentence entered after the verdict they appeal. The charging part of the information is as follows:
“That the said Nick Niccoli and John Doe Quiriconi in the county of Pierce, in the state of Washington, on or about the 11th day of November, nineteen hundred and nineteen, then and there being unlawfully and feloniously did conduct and maintain a place for the unlawful sale of intoxicating liquor, to-wit: the premises known as No. 1502 Broadway in the city of Tacoma, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.”
The statute (Laws of 1917, p. 60) upon which the information is based is as follows:
“Any person who opens up, conducts or maintains, either as principal or agent, any place for the unlawful sale of intoxicating liquor, be and hereby is defined to be a ‘ jointist’. Any person who carries about with him intoxicating liquor for the purpose of the unlawful sale of the same be and hereby is defined to be a ‘bootlegger.’ Any person convicted of being either a ‘jointist’ or ‘bootlegger’ as herein defined shall be deemed guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years. ’ ’
By comparison, it will be observed that the information is drawn in substantially the language of the statute. The first point is that the information is defective because it does not allege an overt act coupled with an intent to commit a crime. This question was before this court in State v. Burgess, 111 Wash. 537, 191 Pac. 635, and was there fully discussed and considered. In the course of the opinion it was said:
*544 “The argument proceeds upon the assumption that the statute seeks only to punish the entertaining of the
It is next claimed, that the appellant has been denied the equal protection of the law because the section of the statute under which he was convicted makes the offense a felony and imposes a penalty for such offense, while one convicted under either § 5 or § 10 of Initiative Measure No. 3. (Laws of 1915, p. 2, ch. 2) would only be guilty of a misdemeanor and would receive much lighter sentence. Section 5 of Initiative Measure No. 3 is what is generally known as the abatement statute, and provides that upon the conviction of the owner or lessee of a building, that the premises where the intoxicating liquor was unlawfully manufactured or sold are declared to be common nuisances and may be abated as such. Section 10 of the act makes it unlawful for any person to keep, or maintain, or by associating with others, keep or maintain any club house or other place where intoxicating liquor is received, kept or disposed of, or for the purpose of distribution among the members of a club or association. This section is directed against the members of clubs or associations. The violation of either § 5 or § 10 is a misdemeanor and a person upon conviction may be punished for such an offense. In 1917, to Initiative Measure No. 3 there were
There was also argued in this case the question as to the effect of amendment 18 to the Federal constitution upon the prohibition laws of the state. When the case was caused to be heard En Banc, the court was of the opinion that this question was necessarily involved in the case. It subsequently developed, however, that the . question is not in this case. The appellants were tried and convicted prior to the time that the amendment became effective as a part of the Federal constitution. The question is an important one and one which it seems to us should not be disposed of by mere academic discussion, as it would necessarily be if determined at this time.
It is the opinion of the court that the decision of the question should be deferred until it comes before us as a question to be determined in disposing of a particular case. The argument which the court has heard and the briefs which have been read and considered will be
The judgment will be affirmed.
■All concur.