State v. Whipple

124 Wash. 578 | Wash. | 1923

Tolman, J.

— Appellant was convicted in justice court and subsequently on appeal in the superior court, upon a complaint which charged: “The said defendent, Mrs. E. Whipple, then and there being’, did then and there willfully and unlawfully have in her possession intoxicating liquor other than alcohol, with the intention of selling* and disposing* of the same, contrary to the statute,” etc.

Upon-the trial in the superior court, after the jury was empaneled, the first witness was called and sworn and a question propounded to him, whereupon counsel for defendant entered objection to the introduction of any evidence, for the reason, among others, “that the complaint does not state facts sufficient to constitute a crime or misdemeanor of any kind.” This objection was overruled and an exception was taken and preserved.

This ruling is assigned as error, the appellant relying upon State v. Catalino, 118 Wash. 611, 204 Pac. 179, where a like contention directed toward a complaint in the same language was sustained. The question involved in the Catalino case was afterwards submitted to the court sitting En Banc in the case of State v. Misetrich, ante p. 470, 215 Pac. 13, and, after full consideration, the Catalino ease was, in effect, overruled. The complaint in this case was sufficient under the more recent ruling.

Appellant was arrested on this charge in a lodging-house or hotel which she then operated, and three of the police officers then present were permitted to testify that they remained in and about the place for about three hours following the arrest, and that during* that time fifty-seven men came into the place. The objection to this testimony was that it was incompetent, irrelevant and immaterial. The charge was that of having-possession of intoxicating liquor with the intention of selling it, and it seems to us that this evidence was competent and material, as, in the light of the circumstances shown, the jury might very well believe that these men, or some of them, went to the lodging- house for the purpose of purchasing- liquor. Of course, the appellant was entitled to, and was permitted to, make her explanation, and the whole matter was thus given to the jury to be weighed in connection with all of the other evidence in the case.

The motion for a new trial, made and presented in the court below, was supported by the affidavits of three of the jurors who tried the case, tending to show that they misunderstood the instructions given by the court, and consented to the verdict because of such misunderstanding. We cannot hold that these affidavits were other than an attempt on the part of these jurors to impeach their own verdict, and under oft-repeated rulings of this court, that may not be done.

The judgment appealed from is affirmed.

Main, C. J., Fullerton, Parker, and Holcomb, JJ., concur.