231 P. 392 | Mont. | 1924
1. "In the absence of a statute to that effect, evidence of the reputation of a defendant's place is not admissible in a criminal prosecution." (7 Ency. of Ev. 742; Cook v. State,
In California, evidence of general reputation is admitted in civil proceedings, because of express statutory provision to that effect, (People v. Macy,
5. Admissibility of evidence secured by search or seizure, see notes in 15 Ann. Cas. 1205; Ann. Cas. 1915C, 1182. *14
1008), but similar testimony is excluded in criminal actions. (People v. Johnson,
2. It was error to allow the four bottles of intoxicating liquor found in a case outside the premises in question to be introduced in evidence without any proof that the defendants were in any manner responsible for the liquor being placed or kept at the point where the same was found. (Grider v. State,
3. The court erred in refusing defendant's offered instruction No. 2, which in effect directs the jury to acquit "unless you find that the defendants maintained the place or that defendants in this case were aiding and abetting some other person who did maintain the place." This is a correct statement of the law and of the issue made in the pleadings. One cannot be held responsible for the commission of the crime unless he has both aided and abetted in the commission of the same. (People v.Dole,
None of the cases cited by appellants under the second point treated under this specification are applicable to the facts in the present case. Liquor found upon premises is presumed to belong to the owner or occupant, and the burden is upon him to show that he had no knowledge of their presence there. (State
v. Sawyer (Mont.),
As to alleged error in refusing to give defendants' offered instruction No. 2, see State v. Weston,
1. The information charged that these men, between certain dates, did knowingly, willfully, unlawfully and wrongfully conduct and maintain a place where intoxicating liquors *16 were then and there sold, kept and bartered. The information describes a building, together with its additions and outbuildings.
The statute, section 11066, Revised Codes of 1921, declares in part that any room, house, building, structure or place where intoxicating liquor is manufactured, sold, kept or bartered, "in violation of this Act," is a common nuisance, "and any person who maintains such a common nuisance shall be guilty of a misdemeanor."
There was direct evidence tending to show that both defendants[1] during the times and at the place mentioned in the information had sold intoxicating liquors to divers persons. In addition, against objection, the state was permitted to show that the general reputation of the building during the period covered by the information was that it was a place where intoxicating liquors were kept, sold and bartered. This was error. The question at issue was whether the defendants had committed acts which under the statute created a nuisance. Neither the reputation of the defendants nor of the place is a constituent part of the offense charged. The offense may not be proved by hearsay evidence, and evidence as to general reputation is, of course, pure hearsay.
In a prosecution against a person for maintaining a liquor nuisance and in the absence of a statute permitting evidence of the general reputation of the place where the nuisance is alleged to have existed, such evidence is inadmissible. Indeed, this is the well-nigh universal rule with respect to common nuisances in general, although there are some exceptions. (Wharton's Criminal Evidence, 10th ed., sec. 255; Greenleaf on Evidence, Lewis' ed., sec. 186; 7 Ency. of Ev. 742; Elliott on Evidence, sec. 3063; 33 C.J. 755; State v. Foley,
Mr. Wigmore says: "The offense of being a common thief, a common gambler, or other common offender, or of keeping a common nuisance, e.g., a place for illegal sale of liquor or drugs, is one which by some courts, sometimes under statute, has been regarded as provable by reputation"; and then he adds this significant sentence, "but perhaps the notion here enters that reputation is a part of the issue." (Wigmore on Evidence, 2d ed., sec. 1620 (3).)
The supreme court of Oklahoma, in Sibenaler v. State,
Without attempting to analyze these Oklahoma cases, we deem it sufficient to say that all except Mitchell v. State are not only contrary to the overwhelming weight of authority but they establish a rule of evidence which, according to the general voice, it is the province of the legislature to establish if the people desire to relax the well-known rule which excludes this character of testimony.
In a number of states statutes have been passed authorizing the reception in evidence of general reputation in common offender and common nuisance cases (Wigmore on Evidence, sec. 1620 [3], and note), certainly persuasive that evidence of the character we are discussing was not deemed admissible in those states in the absence of statute.
A well-established exception to the rule permits the state in the prosecution of one charged with keeping a house of ill fame to introduce as corroborative evidence the general reputation of the house itself. The reasons for the exception are well presented in State v. Hendricks,
In abatement cases evidence of the general reputation of the place sought to be abated is admissible — probably in the absence of statute. (State v. Mercier,
We cannot assent to the proposition that even if the admission of this evidence was error, it was not prejudicial. The defendants, while admitting they had served drinks to patrons of the place, attempted to maintain that all they sold was "soft drinks"; they denied that they had ever sold intoxicating liquor of any kind there. The weight of their testimony was for the jury's determination. We cannot say that there was not a substantial conflict in the evidence upon this vital point; consequently we are not in a position to say that the erroneously admitted evidence was not sufficient to tip the scales against the defendants.
2. The defendant Peters styled himself a day clerk in this[2] establishment, while Adams said he was night clerk. They contended that they were mere employees of one Mickey Howard, who they asserted was proprietor of the place, and that they had nothing to do with conducting or maintaining it. But defendant Peters testified that Howard was absent for some three weeks, during which time he, Peters, when on shift had general supervision and charge of the entire place. Defendant Adams testified he worked during Howard's absence. He denied that as night clerk he had full charge of the place, saying that it "automatically ran itself"; but he had the combination to the safe, and admitted that he was working on a percentage basis, — that is, he received a percentage from the liquids sold. It is clear, despite his denials, that while he was on shift he and no other had charge of the place. If, then, these defendants, in the capacities in which admittedly they served, sold intoxicating liquor in the place mentioned in the information, they were guilty of maintaining a nuisance as charged in the information. (People v. Frankovich,
3. The court correctly charged the jury that all persons[3] concerned in the commission of a crime, whether it be a *20 felony or misdemeanor and whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in any crime so committed. (Sec. 10732, Rev. Codes[4] 1921.) The court defined the word "maintain" in the language of the first part of an instruction which appears in State v.Pistona, supra. In its opinion in that case the court quotes the Washington statute, observing, "So far as we are aware, no other statute is worded just as ours is." In an instructive opinion in which the statute is construed and many authorities are reviewed the court sustained the instruction.
It is not necessary to extend this opinion with an analysis of that portion of the instruction which was given by the court in the case at bar. Suffice it to say that in our judgment it does not adequately define the word "maintain" as employed in our statute, section 11066, supra.
Counsel for defendants offered an instruction explaining the meaning of the word "maintain" correctly, but added thereto a complex sentence in which he attempted to cover the provisions of section 10732, supra. In doing so he rather confused than clarified the definition of the word. Error was not committed in refusing this instruction. As the case must go back for a new trial it is suggested that the court in explaining the meaning of the word "maintain" as employed in the statute might use to advantage that part of the offered instruction which precedes the complex sentence above referred to.
4. Complaint was made because the court admitted in evidence[5] four bottles of intoxicating liquor which were seized on January 15, 1924, upon the occasion of a raid made upon the premises, and which was within the period covered by the information. Apparently these bottles were taken from a beer case which was outside the building but in close proximity to it. At that time the officers searched the building from top to bottom but were unable to find intoxicating liquors of any kind. There was evidence tending to show that just prior to the raid intoxicating liquors were being served in the *21
building, and there was some testimony tending to identify one of the bottles as having been in use at the very time the officers entered the building. The circumstances indicated strongly that the beer case in which the bottles were found was used as a place of concealment for liquor by those who were in charge of the building. Under these circumstances the bottles were admissible[6] in evidence. The law is that, as tending to show the maintenance of a liquor nuisance, evidence is admissible which shows the discovery of intoxicating liquor on premises occupied or controlled by defendant; and evidence may be admitted of the finding of liquor in a place other than the defendant's house or place of business, provided it be shown that defendant used such other place, or resorted thereto or had access thereto, and there is evidence tending to connect him with the liquor discovered. (33 C.J. 753, 754; State v. Sawyer,
The judgment is reversed and the cause is remanded to the district court of Hill county with direction to grant the defendants a new trial.
Reversed and remanded.
MR. JUSTICE STARK and HONORABLE FRANK P. LEIPER, District Judge, sitting in place of MR. JUSTICE HOLLOWAY, disqualified, concur.
MR. JUSTICE GALEN, being absent on account of illness, takes no part in the foregoing decision.
MR. JUSTICE RANKIN, being disqualified, takes no part in the foregoing decision. *22
