State v. Durfee

ELIAS HANSEN, J. The defendant was convicted of the crime of being a persistent violator of title 54 (sections 3341-3381), Comp. Laws Utah 1917, and was sentenced to serve an indeterminate term in the state prison. He appeals. The charging part of the information which was filed against the defendant reads as follows: “The said Cleland Durfee, on or about the 20th day of February, A. D. 1929 at the County of Utah, State of Utah, unlawfully, wilfully, feloniously and knowingly, did, then and there, have in his possession certain intoxicating liquor, to-wit: Moonshine Whiskey, containing more than one-half of one per cent alcohol by volume, he, the said Cleland Durfee prior to the commission of the offense above set out, to-wit, on the 18th day of July, 1927, in a Criminal Action before the City Court of Provo City, Utah County, State of Utah, wherein the State of Utah, was plaintiff and he, the said defendant, Cleland Durfee, was defendant, having been duly convicted of a violation of the provisions of title 54, Compiled Laws of Utah, 1917, which said former violation was not a violation of section 3361 of said title 54, Compiled Laws of Utah, 1917.” Title 54 of Comp. Laws Utah 1917 is commonly known as the state prohibition law. It contains various provisions prohibiting the manufacture, transportation, sale, possession, and use of intoxicating liquor. The act makes the first conviction of its provision a misdemeanor. The act, as amended by chapter 10, Laws of Utah 1925 (amending Comp. Laws 1917, § 3345), provides that: *4 “A person having once been convicted of a violation of any of the provisions of this title [title 54], except Section 3361, who thereafter violates the provisions thereof, shall be considered a persistent violator of this title, and shall be deemed guilty of felony.” The defendant contends, in a supplementary brief filed in this court, that the information is defective, and upon that ground he seeks a reversal of the judgment appealed from. No such claim was made in the court below by demurrer to the information or otherwise. That question is not raised by the defendant in his assignment of error. The sufficiency of an information must be tested by the ■ provisions of Comp. Laws Utah 1917, §§ 8830, 8832, and 8841. These sections of our Code of Criminal Procedure provide as follows: “Sec. 8830. The information or indictment must contain: “1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties; “2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” “Sec. 8832. The information or indictment must be direct and certain as it regards: “1. The party charged. “2. The offense charged; “3. The particular circumstances of the offense, when they are' necessary to constitute a complete offense.” “Sec. 8841. The information or indictment is sufficient if it can be understood therefrom: “1. That it is entitled in a court having authority to receive it though the name of the court be not stated; “2. If an information, that it was subscribed and presented by a person authorized by law so to do; or, if an indictment, that it was found by a grand jury of the county in which the court was held; “3. That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the informant, or, as the case may be, to the grand jury, unknown; “4. That the offense committed was within the jurisdiction of the court and is triable therein; *5 “5. That the offense was committed at some time prior to the time of the presenting of the information or the finding of the indictment; “6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction, according to the right of the case.” If an information fails to measure up to the requirements of the provisions of our Code of Criminal Procedure which we have quoted in full the defendant may attack the information as provided in section 8889, Comp. Laws Utah 1917, which reads as follows: “The defendant may demur to the information or indictment when it appears upon the face thereof: “1. That the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county, if an indictment, or, if an information, that the court has no jurisdiction of the offense charged therein; or, “2. That it does not substantially conform to the requirements of §§ 8830-8832; “3. That more than one offense is charged, except as provided in § 8834; or, “4. That the facts stated do not constitute a public offense; or, “5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.” If the sufficiency of the information is not challenged until after verdict, all defects appearing on the face of the information other than the objections that the court is without jurisdiction, and that the facts stated do not constitute a public offense, are waived. Comp. Laws Utah 1917, § 8896, provides: “When the objections mentioned in § 8889 appear upon the face of the information or indictment, they shall be taken only by demurrer, except that the objection to the jurisdiction of the court over the subject of the information or indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment.” *6 This court has heretofore had occasion to point out the defects in an information that are available by demurrer as distinguished from those defects that are available after verdict. United States v. West, 7 Utah 437, 27 P. 84; State v. Anderton, 69 Utah 53, 252 P. 280. Where the sufficiency of the information has not been raised in the court below, this court is limited in its inquiry to the determination of two questions,' viz.: Did the trial court have jurisdiction over the defendant and the crime charged? Do the facts alleged in the information constitute the crime of which the defendant has been convicted? The trial court clearly had jurisdiction of the person of the defendant and of the crime charged. No claim is made to the contrary. It will be observed that the language of the information charges the defendant with being a persistent violator of title 54, Comp. Laws Utah 1917, in substantially the language of the act creating and defining the offense charged. It is not always good pleading to charge a crime in the language of the act creating and defining a crime, but when an information charges a statutory crime in the language of the statute it cannot well be said that such an information does not state a public offense. While the information does not specify the particular provisions of title 54, Comp. Laws Utah 1917, that the defendant was convicted of violating, it is alleged that it was not section 3361. Regardless of what provisions of title 54, Comp. Laws Utah 1917, except section 3361, a person may have been convicted of violating, such person once so convicted is guilty of a felony if he is again convicted of the violation of its provisions. The facts alleged in the information constitute the crime of which the defendant was convicted. Whether the information in this case would or would not withstand a demurrer, upon the ground that it does not substantially conform to the requirements of sections 8830- and 8832, Comp. Laws Utah 1917, is not before us for review, and therefore we express no opinion as to that question. The following cases may be of aid to the bench and bar if that' question should be properly *7 presented for determination. State v. Webb, 36 N. D. 235, 162 N. W. 358 ; State v. Goldstrohm, 84 W. Va. 129, 99 S. E. 248; State v. Hoilman, 82 W. Va. 98, 95 S. E. 591; State v. Daniel, 141 La. 423, 75 So. 102; Fleming v. Commonwealth, 175 Ky. 655, 194 S. W. 788; State v. Brendeke, 158 Minn. 239, 197 N. W. 273; Tucker v. State, 14 Okl. Cr. 54, 167 P. 637; State v. Gilfilen, 124 Wash. 434, 214 P. 831; State v. Royal, 94 W. Va. 617, 119 S. E. 801; State v. Reed, 119 Kan. 467, 239 P. 749. See also 31 C. J. 735. Defendant also claims that the evidence is insufficient to show that he had possession of intoxicating liquor at the time and place charged in the information. The evidence on behalf of the state shows or tends to show these facts: At the time and place charged in the information defendant had just stopped his automobile on one of the public streets of Provo City, Utah county, Utah. Mr. Cleveland was in the automobile with the defendant. Two deputy sheriffs of Utah county, Utah, came up to the automobile soon after it stopped. One of the deputy sheriffs told defendant and Mr. Cleveland not to make any fuss; that they were under arrest. One of the deputy sheriffs inquired “Is she there?” to which the defendant replied “Yes, it is there.” The automobile was searched and a five-gallon keg of moonshine whisky was found in the back part of *the car. The keg was covered with blankets and quilts. After the defendant and Mr. Cleveland were arrested they were taken to the sheriff’s office. Soon after they arrived at the sheriff’s office, the sheriff in referring to the keg that was found in defendant’s automobile said “It might be a keg of water or something” to which the defendant replied: “No, it is whiskey, I wish it was water.” The defendant offered evidence which tended to show that the keg of liquor belonged to Mr. Cleveland, and that the defendant did not know it was in the automobile. According to the testimony of the defendant and Mr. Cleveland the former had loaned his automobile to the latter on the day in question. That Mr. Cleveland had secured the liquor and was on his way to *8 deliver the same to an “under-cover” man of the sheriff when the defendant got into the automobile and had ridden only a short distance when Mr. Cleveland and the defendant were arrested. That Mr. Cleveland did not inform the defendant that he had any liquor in the car until they were arrested. If the testimony offered by the defendant and his witnesses was believed by the jury, the defendant should and doubtless would have been acquitted. Considering all the evidence on behalf of the state, we are of the opinion that there was sufficient evidence to show that the defendant knowingly had in his possession intoxicating liquor at the time and place charged in the information. Defendant also assigns as error the refusal of the trial court to submit to the jury the lesser offense of merely having intoxicating liquor in his possession. The defendant requested that such an instruction be given to the jury. It is a general rule of law that, when a lesser offense is included within the crime charged in an information, it is the duty of the trial court, when so requested, to instruct the jury on the law of the lesser crime and to inform the jury that they may, if in their opinion the evidence justifies it, find the defendant guilty of the lesser included offense. The crime of knowingly having possession of intoxicating liquors is necessarily included within the charge of being a persistent violator of title 54, Comp. Laws Utah 1917. It was so held by this court in the case of State v. Bohn, 67 Utah 362, 248 P. 119. A stipulation made by counsel for the defendant during the course of the trial takes this case out of the general rule. The state called as a witness, for the purpose of showing a former conviction of the defendant of a violation of the prohibition law, the clerk of the city court of Provo City, Utah. After some preliminary questions were asked the following occurred: Counsel for defendant: “If the court please, to save time the defendant is willing to stipulate with the state that the defendant was convicted of having in his possession intoxicating liquors on the 18th *9 day of July, 1927, the prior offense which is set forth in the information in this ease. We are willing to stipulate to that.” Attorney for the state: “That being the case, we don’t need this witness any more, your Honor, and Mr. Evans may be excused. * * *” The defendant, having stipulated that he had theretofore been convicted of the possession of intoxicating liquor at the time and place alleged in the information, is in no position to complain because the trial court in its instruction to the jury gave full effect to the stipulation voluntarily made by the defendant during the course of the trial. The law applicable to admissions made in the course of judicial proceedings is thus stated in 16 C. J. 629: “Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts. They are conclusive on the person making them at least for the purpose of the case in which they are made.” Cases are cited in the footnote which sustain the text. The law could not well be otherwise. The judgment is affirmed. CHERRY, C. J., and EPHRAIM HANSON and FOL-LAND, JJ., concur.