Opinion
Department Two
Appeal from a judgment of the Superior Court of Lassen County, and from an order denying a new trial. W. T. Masten, Judge.
COUNSEL:
The information is too general and not direct and certain as to the offense charged. It should give names and specify what particular Indian or Indians defendant sold liquor to. (Pen. Code, secs. 950, 952; People v. Palmer , 53 Cal. 615; People v. Feilen , 58 Cal. 225; 41 Am. Rep. 258; Wharton's American Criminal Law, secs. 254, 299; United States v. Simmons , 96 U.S. 360; Biggs v. People, 8 Barb. 547; People v. McKenna , 81 Cal. 160; People v. Neil , 91 Cal. 468.) The demurrer should have been sustained for this reason, and also because the information charges defendant with two offenses. If furnishing liquor to any Indian is an offense, furnishing it to two Indians is two offenses. (Pen. Code, secs. 597, 954; People v. Alibez , 49 Cal. 453; People v. Majors , 65 Cal. 146; 52 Am. Rep. 295; Wharton's American Criminal Law, sec. 382; 4 Am. & Eng. Ency. of Law, 755; McGahagin v. State , 17 Fla. 665; State v. McPherson, 9 Iowa 53; State v. Stouderman, 6 La. Ann. 286; State v. Palmer , 35 Me. 9; Commonwealth v. Symonds , 2 Mass. 163; Morse v. Eaton , 23 N.H. 415; State v. Fowler , 28 N.H. 184; People v. Wright, 9 Wend. 193; Commonwealth v. Bartilson , 85 Pa. St. 487; Fulmer v. Commonwealth , 97 Pa. St. 503; Greenlow v. State, 4 Humph. 25; Weathersby v. State, 1 Tex. App. 643.) There is a fatal variance between the information and the proofs. The information charges the defendant with selling intoxicating liquor to two Indians, and the evidence shows that if this defendant sold or furnished liquor at all, it was to one Indian only. (Wharton's American Criminal Law, sec. 592; People v. Arras , 89 Cal. 226; People v. Hughes , 41 Cal. 234; People v. Allen , 61 Cal. 140; People v. Oreileus , 79 Cal. 178; People v. McNealy , 17 Cal. 336; People v. Leong Sing , 77 Cal. 117.) The testimony of witnesses Strong and Johnston as to whether or not the persons to whom defendant is alleged to have sold liquor were Indians was incompetent, as neither of them knew anything of the arresting of the alleged Indians. (1 Greenleaf on Evidence, Redfield's ed., secs. 103-05.) The statements of witness Johnston that one of the persons had told him years before that he was an Indian is inadmissible, as it does not appear that the declarant is dead. (1 Greenleaf on Evidence, sec. 103; Am. & Eng. Ency. of Law, 18, 262.) The prosecution did not prove the venue. There is no proof that the alleged offense was committed in Lassen county.
E. V. Spencer, and F. C. Spencer, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
It was not necessary for the information to contain the name of the Indians. (Pen. Code, sec. 959, subd. 3.) The information, being drawn in the language of the statute, is sufficient. (Pen. Code, sec. 397; People v. Rogers , 81 Cal. 209; People v. Forney , 81 Cal. 118; People v. Keeley , 81 Cal. 210; People v. Rozelle , 78 Cal. 89; People v. Fowler , 88 Cal. 136; People v. Russell , 81 Cal. 616; People v. Mahlman , 82 Cal. 585; People v. Savercool , 81 Cal. 650; People v. Naylor , 82 Cal. 608; People v. Tonielli , 81 Cal. 275; People v. Fick , 89 Cal. 144; People v. Harrold , 84 Cal. 567, 570.) Selling liquor to two Indians by one act is one offense. (People v. Milne , 60 Cal. 71; Wharton's Criminal Pleading and Practice, 253; Rex. v. Bykerdike, 1 Moody & R. 179; Bishop's Criminal Practice, 570; King v. Fuller, 1 Bos. & P. 180.) There is no variance between the information and proof. The evidence shows conclusively the offense of selling to the two Indians by one act. The evidence as to whether the persons to whom the liquor was alleged to have been sold were Indians, was competent. (People v. Monteith , 73 Cal. 7; People v. Sanford , 43 Cal. 32; People v. Lavelle , 71 Cal. 352; People v. Hong Ah Duck , 61 Cal. 387; People v. Loui Tung , 90 Cal. 377.) Proof that an offense was committed in a particular city constitutes sufficient proof of venue. (People v. Loui Tung, supra ; People v. Etting , 99 Cal. 577; People v. Manning , 48 Cal. 338; People v. Tonielli, supra ; People v. McGregor , 88 Cal. 142; Whiting v. Quackenbush , 54 Cal. 306; Whitney v. Ellsworth , 92 Cal. 594.)
JUDGES: Britt, C. Vanclief, C., and Belcher, C., concurred. Temple, J., McFarland, J., Henshaw, J.
OPINION
BRITT, Judge
[45 P. 262] It is provided by section 397 of the Penal Code, as amended in 1893, that: "Every person who sells or furnishes. .. . intoxicating liquors to any Indian is guilty of a felony." Defendant in this case was tried and convicted under an information charging that he did, on August 17, 1895, at the county of Lassen, "willfully and unlawfully sell and furnish intoxicating liquor, to wit, whiskey, to two Indians," contrary to the form of the statute, etc. He contends on this appeal that the information was not direct and certain as to the offense charged, in that it failed to name the Indians to whom the liquor was furnished. The question is not free from difficulty, and there is much conflict among decisions on cognate subjects. Wharton states the prevalent opinion to be that the name of the purchaser need not be averred in an indictment for retailing liquors without license, though he thinks that on principle, supported by several cases, the name of the vendee should be specified, if known, or the fact that he is unknown should be alleged (Wharton's Criminal Law, sec. 1510); and Mr. Bishop, in guarded language, expresses a similar view. (Bishop on Statutory Crimes, sec. 1037.) The matter of legal reason involved is whether the offense is charged with sufficiency of detail to enable the accused to prepare for his defense, and to denote and characterize the transaction so that the judgment will operate as a bar to a second prosecution founded thereon. (See People v. McKenna , 81 Cal. 158.) The offense denounced by the statute consists in furnishing intoxicating liquor to "any Indian" -- not to those of a special description, as minors, habitual drunkards, etc; so that defendant needed not be apprised of their names as a means of ascertaining whether they belong to an interdicted class of Indians; and, as to the use of the judgment as a bar to another prosecution, since the identity of the offense involved in a plea of former acquittal or conviction rests ultimately in parol proofs, even when the indictments are alike (People v. Lockwood , 6 Cal. 205, 1 Bishop's Criminal Procedure, 816; Wharton's Criminal Evidence, 593), we apprehend that little aid in this regard would be furnished by designating the Indians by name; especially as the names of California Indians are seldom a matter of notoriety among the white population. In Commonwealth v. McClellan , 101 Mass. 34, the defendant was charged with cruelly beating "a certain horse"; the court said: "Nor is it necessary to describe the horse particularly, for the sake of distinguishing it from other horses, in order to protect the defendant from a second prosecution for the offense. If he is again prosecuted for the offense, he may plead this conviction and establish the identity of the cases by evidence, the burden being on him." We think the present information must be considered sufficient.
Appellant argues that more than one offense is charged in the information, because he is thereby accused of furnishing liquor to two Indians, but, obviously, the act charged is single; just as when, by a single act, larceny is perpetrated of two or more coins or other chattels. (Wharton's Criminal Pleading, 254.)
It is claimed that on the trial there was a variance between allegation and proof, in that the evidence showed that the liquor was furnished, if at all, to one Indian only. Conceding to the exigence of the argument that such a variance would be material, we think none appears; the evidence tended to show that the two Indians were together in a barroom, and that one of them gave the defendant money with which he purchased a bottle of whiskey at the bar; both Indians repaired to a convenient rendezvous where defendant met them, and he there designedly placed the bottle within their reach, or delivered it into the hand of the one from whom he received the money; both then drank from the bottle, though not in defendant's presence. These facts, unexplained as they were, justify the inference that liquor was furnished to two Indians.
There is an objection that the venue of the offense was not proved. The evidence showed that it occurred at Susanville, and it is judicially noticed that Susanville is the county seat of, and situated within Lassen county. (People v. Etting , 99 Cal. 577.) The judgment and order denying defendant's motion for new trial should be affirmed.
For the reasons given in the foregoing opinion the judgment and order denying defendant's motion for new trial are affirmed.