241 P. 705 | Wyo. | 1925
Lead Opinion
The record in this cause discloses that Lulu Sorenson, hereinafter mentioned as the defendant, was by an information filed in the District Court of Niobrara County on August 30, 1923, charged with a violation of the provisions of Chapter 117 of the Session Laws of Wyoming, 1921, relating to the sale and possession of intoxicating liquors. The information is drawn with three counts, one charging an unlawful sale of intoxicating liquor on May 15, 1923, the second count charging an unlawful sale on June 15, 1923, and the last count charging an unlawful possession on May 31, 1923. This information, though signed by the county attorney of Niobrara county, was not verified by him. The usual form of oath attached to the information was filled out and signed by the attorney, but the jurat clause was not executed by the clerk of the district court in the space left for his signature and the court seal.
Defendant was arrested on a bench warrant issued upon this information, and, according to court entry on the bar *94 docket, on September 4, 1923, "Defendant in open Court waived formal arraignment and entered a plea of not guilty." This plea was not endorsed on the information. The case proceeded immediately to trial.
Instruction No. 2 given the jury by the court specifically set out the three counts of the information, and then concluded, "To this information the defendant has entered a plea of not guilty, which plea puts in issue every material allegation in the foregoing allegations of the three counts of the information. No objections or exceptions were made or saved to these instructions. The defendant being found guilty on all three counts, judgment and sentence was entered thereon, and review of the record of the cause is sought by this appeal.
The first proposition advanced by the defendant seems to be that she never pleaded to the information filed, as mentioned above, on August 30, 1923. Reference is made in her brief to a motion to quash and an order thereon which appear in the record, and it is insisted that her plea of "not guilty" was entered to an information filed in the cause on August 23, 1923. But the record now before this court does not at all support these contentions. It is true that the motion to quash and the order disposing of it refer to an information filed August 23, 1923, but no such information appears in this record. Only the information of August 30, 1923, is here. There being but the one information in the record, and the court's minutes in the cause showing waiver of formal arraignment and entry of a plea of "not guilty," it is clear the plea must be here regarded as entered to the information now before this court, and none other. This conclusion is made the more certain because of what has already been recited as appearing in two of the instructions given the jury when the cause was submitted to it. One of these instructions gave verbatim the three counts of the information filed August 30. 1923, and then stated that defendant had pleaded not guilty to it. The defendant evidently *95 considered these instructions correct as no complaint is made of them.
It is argued that the fact that the information was not sworn to by the county attorney and that defendant's plea was not endorsed upon the information are jurisdictional defects requiring the reversal of the case. No authorities are cited in support of these contentions. Concerning the want of verification of the information it need only be said that the matter would appear to be determined on principle, at least, adversely to defendant's position, by Sections 7483 and 7487 of Wyoming C.S. 1920, considered in the light of what has been said by this court in State v. Kusel,
Because there was failure to endorse the plea on the information cannot avail the defendant here. The statute on the point is directory, not mandatory. It is not argued that the defendant was injured in any way by this failure, nor are any authorities cited to support defendant's view. Persuasive authority is to the contrary. Waldschmidt v. Territory,
Objections were made and exceptions saved to the court's rulings in allowing evidence of more than one offense under the three counts contained in the information. This question has been considered and ruled adversely to defendant in the case of State v. Carl Sorenson,
It is urged that error was committed in admitting in evidence state's exhibit "Z" over defendant's objection that it did not appear that the contents thereof were fit for beverage purposes; but it was later in the trial admitted by defendant's counsel that the exhibit contained "whiskey of more than one half of one per cent of alcohol as charged in the information." The defendant herself testified that it was whiskey. We fail to see any error in this ruling. Strada v. U.S., 281 Fed. (C.C.A. 9th Cir.) 143; Hensberg v. U.S., 288 Fed. (C.C.A. 8th Cir.) 370.
The prosecuting attorney in the course of his closing argument said of the defendant, "convict her and give notice to violators of the liquor traffic law that the law will be enforced." Objection was made to this statement, overruled by the court and exception taken to the ruling. This is assigned as error. The ruling was correct. Ross v. State,
Other errors are assigned to the admission and rejection of evidence. We have examined them all and deem it unnecessary to discuss them in detail further than to say that we think they are unfounded. Nothing in the record of the *97 cause indicates that the defendant did not have a fair trial, and the judgment should be affirmed.
Affirmed.
POTTER, C.J., and KIMBALL, J., concur.
Addendum
The application for rehearing will be denied in each of said cases. *98
