State v. WarnerState v. Warner
- Reporters:
- , ,
- Before:
- Qictinn
Thе appellant was accused, in a criminal complaint, of having, at a certain time and plаce, unlawfully sold and furnished, to one J. R. *80 Peterson, certain intoxicating liquor. A warrant was issued and a preliminаry examination had, and the accused was hound over to appear at the next general term of the district court to he held within the county. When the district court convened, the county attorney made and filed an information, charging appellant with such offense. Appellant was duly arraigned upon such information, and pleaded not guilty to the charge therein set forth. When the case was reachеd for trial, appellant appeared with his counsel, a jury was impaneled, and the trial proceeded. Peterson was called by the prosecution and was sworn and’ testified as a witness. He testified that, at the time and place mentioned in the information, he paid the accused two dollars fоr a bottle and two or three drinks of intoxicating liquor. At that stage of the trial, counsel for defendant asked for leave to cross-examine the witness, which request was granted. It then developed that the witness’ truе name was J. W. Peterson and not J. E. Peterson, as stated in the information. Counsel then asked that the testimony be all stricken from the record, for the reason that the charge contained in the information was selling and furnishing to J. E. Peterson. The motion was granted, the court stating to the prosecuting attorney that a new infоrmation was necessary, and then discharged the jury. The county attorney then prepared and filed аnother information charging the sale and furnishing to have been made to J. W. Peterson. In all other respеcts, the information was identical with the former one. The accused was then arraigned upon the new information and pleaded not guilty. By consent of the attorneys, the same jury was sworn which had been impaneled in the former trial.
Peterson was then called by the prosecution, sworn and testified as a witness to having purchased ‘and received intoxicating liquor from the defendant, as charged, and related thе circumstances in connection therewith. At the close of the state’s case, counsel for dеfendant moved for a verdict of acquittal upon the ground “that the court does not have jurisdiction оf the action at this time.” The motion was denied and thereafter the defendant gave testimony in his own behаlf.
*81 At the conclusion of the testimony, counsel renewed the motion for a directed verdict, upon the ground that the defendant had been placed twice in jeopardy. The motion was denied. There wеre no requests for instruction. At the close of the general charge to the jury, counsel requested the court to instruct the jury as follows:
“It is no offense to give liquor in one’s own house to his family, domestic servants, or invited guests as a mere act of kindness and hospitality and with no purpose to evade the law.”
The rеquest to so instruct was denied. There was a verdict of guilty and sentence was imposed. The requested instruсtion was inapplicable to the facts as disclosed by the evidence. Peterson was a strangеr to the accused. He was in no sense a guest at the house. The defendant testified: “Yes, he drove in; wanted to buy some booze and I told him I wasn’t buying booze or handling booze. * * * I wasn’t selling any booze, I told him. * * * Introducеd himself first. Kept on begging around, * * * I told him I didn’t sell none. * * * He asked if I couldn’t give him a little drink. Well, I told him I could give him a little drink, I says. But I wоuldn’t sell any to him, so we went in the house. I gave him a little drink of the best I had and then set there and talked.”
The only оther error urged by the appellant is “that the defendant was placed in jeopardy prior to the verdict of the jury finding him guiltyi.” When the defendant, was arraigned upon the second information, he entered a рlea- of not guilty. No other or different plea was suggested at that time. The first objection, made on. behаlf of defendant, was that the court had no jurisdiction of the action. Where a valid indictment or information is filed, the court has jurisdiction to cause the accused to be brought before it to answer to such Chаrge, and, when he is called to plead, if he has any objection to the manner in which he was brought befоre the court, he should make the objection then. By his plea of not guilty, he must be -held to have waived thе issue as to jurisdiction. State v. Fitzgerald, 51 Minn. 534, 53 N. W. 799.
At the conclusion of the taking of testimony, the defendant moved for а directed verdict upon the ground that he had been twice placed *82 in jeopardy. Sections 10695-10696, G. S. 1923, specify wbat pleas may be made upon criminal proceedings:
(1) Guilty; (2) not guilty; (3) a former judgment of conviction or acquittal which may be pleaded either with or without the plea of not guilty. But such pleas must be еntered upon arraignment. If the appellant wished to have availed himself of the proceеding had under the former information as a defense, he should have raised the issue by a plea of formеr jeopardy. In failing so to do, he must be held to have waived the issue. It is too late to raise that issue after the testimony is all in.
Affirmed.