216 P. 566 | Mont. | 1923
prepared the opinion for the court.
This ease is before us for the second time on appeal from a judgment of conviction of the crime of unlawfully manufacturing intoxicating liquor. The appeal was also taken from the order overruling the motion for a new trial. The former opinion may be found in 65 Mont., at page 180, 211 Pac. 298. All of the material facts which are stated in that opinion are before us here with the following exceptions: At the first trial the witness for the plaintiff Jack Dell testified that prior to being employed by defendant, August Ritz, he knew nothing concerning the manufacture of “moonshine whisky”; he did not so testify on the retrial, though he admitted having given such testimony formerly. There is no testimony before us that the defendant remained overnight at the farmhouse and “drank rather freely.” It does not appear that at the time the witness Levengood carried the sack of sugar to the farmhouse defendant sent Dell into the basement while the sugar was being carried in, with instructions to remove the sack to the basement as soon as Levengood left; nor did Dell testify to having seen Levengood carry the sugar in. There was testimony which was not referred to in the former opinion that the stovepipe which was used to connect the stove in the basement to the chimney was purchased by Dell and charged to
There are numerous specifications of error which are relied
There are gathered into one group twelve specifications of
A number of the specifications are based on rulings of the trial court sustaining objections to questions concerning the actions of Dell towards the officers from Red Lodge who had been subpoenaed to testify for the defendant. It is argued
Other questions which are covered by this group were with
One of the specifications there grouped was clearly improperly associated with those which we have mentioned. It was as to the overruling of defendant’s objection to a question as to whether the defendant had given Dell any reason for ordering the removal of the plant, it having been admitted by Dell that he had been given such orders. The question was a proper one and brought forth a response which, if the testimony was believed by the jury, was a complete answer to the contention that defendant had ordered Dell to cease the manufacture of liquor as soon as he had discovered that it was going on. The answer was in effect that defendant told him that the officers were beginning to make liquor investigations in that vicinity and he did not want to be caught.
In our opinion none of the twelve specifications are well founded, and we do not think that taken together they show an undue restriction of the cross-examination of the witness.
Two specifications are grouped into one, based on the rulings
Another of the groups of specifications has to do with the overruling of certain objections to testimony of an expert and to the admission of an exhibit. The argument as to the expert testimony is that the witness was not shown to be competent to give his opinion as to the alcoholic content of the liquor which he examined. We ai*e of the opinion that he was shown to be qualified and that the objection was properly overruled.
Objection was made to the testimony of the manager of the
The court refused four of defendant’s requested instructions, which were designated as 1, 2, 8 and 10. These rulings are complained of. Instruction No. 1, if given, would have precluded the jury from considering the element of the offense charged of aiding and abetting in its commission. For this
Taking all of the testimony together, we are of the opinion that the evidence was entirely sufficient to warrant the jury in finding defendant guilty of unlawfully manufacturing liquor which, from the testimony as to the process used and as to the product, the jury were warranted in finding was an intoxicating liquor containing more than the prohibited amount of alcohol and was capable of use for beverage purposes. We do not find any reversible error.
It is therefore recommended that the judgment and order be affirmed.
Per Curiam : For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Affirmed.