State v. Yokum

DAWKINS, J. Defendant appeals from a conviction and sentence for possessing intoxicating liquors, relying upon six bills of exception for reversal of the judgment below. Bill No. 1. The first bill was reserved to the overruling of a plea of autrefois acquit, based upon a former trial and acquittal for manufacturing and selling the. same liquor. It appears that there was found in defendant’s bathroom some 15 gallons of homemade corn whisky, and he was indicted and tried for manufacturing, selling, and disposing of the [850] said intoxicant; but upon trial, it was found that the liquor was in the possession of defendant before 'the Hood Bill (Act 39, 1921) went into effect, and, no proof -being made of any sale, he was acquitted of the charges so made. However, the district attorney thereafter filed a bill of information for unlawful possession of said liquor for beverage purposes, and it was upon this charge that the conviction involved in this appeal was had. While it is true, as a physical fact, that one cannot manufacture or sell intoxicants without possessing the same, either in person or through an agent, still, a charge of violating the .law in those two respects in no way involves the offense of unlawful possession; in neither case could the accused be convicted of such illegal possession, for the reason that it is not, an ingredient of either. All three might be charged in separate counts of the same bill, and conviction or acquittal had upon one or all, without regard to the others. The ruling was therefore correct. 2 Wharton’s Orim. Law (11th Ed.) p. 1991 et seq., and authorities in footnotes. Bill No. 2. Bill No. 2 assails the ruling of the lower court in denying a motion to quash the information. Among the grounds relied upon is that of the unconstitutionality of Act 39, 1921, and while a multitude of reasons why the law was unconstitutional were alleged the only one discussed in brief or argument is that the said act adopts a foreign system or code of laws by reference, meaning, of course, the adoption by reference to federal legislation the definition of certain kinds of intoxicants. Hence we will not consider the other points except to say that they appear to be without merit. The liquor in this case was homemade corn whisky, and, as said in State v. Coco, 152 La. 241, 92 South. 883, and several later cases, no definition is required, either by the statute or in practical experience to determine that corn whisky is intoxicating. None of the other grounds of the motion made in the alternative have been mentioned by appellant, and, finding no merit therein, -we shall not consider them in detail. The ruling was correct. Bill No. 3. The third bill was retained to the refusal of the trial judge to recuse himself when that action was opposed by the counsel for the state. The only basis of the said motion was that the judge who sat in the former cases in which defendant was acquitted stated in the trial of the present case that, if the evidence was the same, that is, as to .the kind and quantity, circumstances, etc., of the liquor found in defendant’s bathroom, he would convict the accused of unlawful possession. We find nothing in these circumstances to support the motion to recuse. Defendant cites section 5 of article 338 of the Code of Practice, as amended by Act 20-3 of 1918, which provides, among .other grounds for recusing a judge: “His having performed any judicial act in the cause in any other, court.” Appellant also cites State v. Lee, 46 La. Ann. 623, 15 South. 159. The section of the article referred to clearly has no application here, for the judge had not only not performed any judicial act in any other court, but none in this particular case or charge anywhere else. The reference to the 46 La. Ann. 623, 15 South. 159, must have been an error, for there was no question of realisation raised in that case. State v. Lee. We find no error. Bill No. 4. The fourth bill presents for our review the ruling refusing certain special charges [852] which defendant requested the trial court to give or hold as follows: “(1) The court will charge itself that the state must prove its case beyond a reasonable doubt, and, in view of the fact that the two deputy sheriffs (the only witnesses in the case) who took the stand testified that the dwelling of defendant was entered and about 15 gallons of whisky was found in the bathroom of his dwelling, not concealed, in unbroken crates, one large bottle of alcohol, not crated, and no evidence having been adduced to show when the liquors had been acquired, whether before or after the enactment of the present law. No evidence of the manufacture thereof, no evidence of any sale, no evidence of unlawful transportation thereof, or other circumstance to show unlawful possession, the act not defining the term 'lawful possession,’ nor fixing any specific quantity, and it not being averred in the information that possession of said liquors was not exclusive of any of the exceptions provided for in said Act. !S(o. 39 of the Legislature of 1921, and no proof having been offered by the state to show that the defendant’s possession of said liquors did not come within the exceptions, the defendant under such statement of facts and circumstances is entitled to an acquittal. “ (2) The court is further requested to charge itself that the defendant is not required to prove his innocence, but the state must prove his guilt beyond a reasonable doubt, and, in the absence of any proof by the state of any act or deed on the part of defendant to show unlawful possession, the law specially providing that he may have intoxicating liquors in his dwelling for personal use, etc., and with no limit as to quantity, the burden of proof of unlawful possession rests upon the state, and defendant is entitled to be acquitted. “(3) The court is requested to charge itself that an accused has the legal right to have and possess in his dwelling intoxicating liquors, and the law having failed to express any rule of what shall constitute a prima facie case, or to fix a maximum quantity, and there being no proof whatever of an unlawful possession or unlawful use of said liquors, defendant must be found not guilty.” The judge gives as his reason for the ruling the. following: “In this case the court found that on or about the time alleged in the bill of information, in the parish of Calcasieu, the defendant had in his dwelling house two 5-gallon glass water bottle containers full of homemade or moonshine whisky, in a homemade crate unpacked, and one 5-gallon glass water bottle container about one-third 'or one-half full of homemade or moonshine whisky, a one-gallon glass jug or bottle pajrtly full of a liquid containing a high percentage of alcohol, being what is commonly called ‘white mule,’ and another. gallon bottle partly full of homemade or moonshine whisky, which was about the same color as ordinary, commercial whisky, and which was the color of the whisky contained in the 5-gallon glass bottle containers. “The defendant did not take the stand himself and offered no evidence whatever. “The court refused all three of the special charges requested by the defendant, for the reason that they did not correctly state the law. The law as applied by the court in this case is as follows: “ ‘An accused is presumed innocent until his guilt is established by the state to the satisfaction of the court and beyond a reasonable doubt, but where the state established (as it did in this case) beyond a reasonable doubt that the defendant possessed in his dwelling house intoxicating liquors for beverage purposes, and where the accused relied, as a matter of defense, on an exception in the statute, which is not in the enacting clause by which the offense is described and forbidden, he had the burden of proving that he was within the exception, and it was not the duty of the state to prove as a part of its case that’ the defendant was not within the exception. See 16 C. J. 531; 1 Wharton’s Crim. Law (10th Ed.) p. 348; Underhill on Crim. Evidence, p. 43; State v. Cain, 106 La. 708, 714, 31 South. 300; State v. Barrow, 31 La. Ann. 693. “The law makes it an offense to possess intoxicating liquor even in a dwelling house for beverage purposes, and while the same statute permits a man to keep intoxicating liquor in a dwelling house for beverage purposes for his own use, and for all his family and guests, if he wishes to urge that defense he must establish it affirmatively, and the state is under no obligation to show that the liquors in his house were not lawfully acquired and were not for the use of himself and his family.” The ruling was correct. Bill No. 5. Bill No. 5 was reserved to the overruling of a motion for a new trial, which was based both upon the allegation that the judgment was contrary to the law and the evidence, [854] and upon the matters covered by the several bills of exception heretofore considered. We find no error in the ruling. Bill No. 6. The last bill was to the overruling of a motion in arrest of judgment, in which it was alleged: That no crime had been charged under the laws and Constitution; that the bill did not allege that the possession of the liquor in his dwelling was exclusive of any exceptions provided by said Act 39 of 1921; that no proof was adduced to warrant a conviction; that he was deprived of his liberty and property without due process of law; and places him in jeopardy twice for the same offense. Of course, the sufficiency of the proof cannot be considered under a motion in arrest of judgment; and all the other matters raised are covered by the preceding bills and rulings thereon. For the reasons assigned, the judgment appealed from is affirmed. O’NTEDL, C. J., concurs in the result.