Summary
In State v. Anderson, 75 Utah 496, 286 P. 645, increased punishment was sustained under a Utah statute (Laws 1925, c. 10) providing: "A person having once been convicted * * * for having violated any city ordinance prohibiting * * * possession [of] intoxicating liquor, * * * and who thereafter violates any of the provisions of this title, shall be considered a persistent violator of this title as provided in this section."
Summary of this case from State v. EndOpinion
No. 4923.
Decided April 8, 1930.
1. INDICTMENT AND INFORMATION — INFORMATION — EXCEPTION IN STATUTE — NEGATIVING. Information charging persistent violation of Prohibition Act need not negative exception that unlawful possession was without a permit or authority of law (Comp. Laws 1917, § 3343). 2. INDICTMENT AND INFORMATION — INFORMATION — PERSISTENT VIOLATOR OF LIQUOR LAW — SUFFICIENCY OF ALLEGATIONS. Information charging defendant as persistent violator of prohibition law was not defective because not specifying previous conviction was under state statute or city ordinances (Comp. Laws 1917, § 3343, and § 3345, as amended by Laws 1925, c. 10). If defendant, convicted of violation of Prohibition Act (Comp. Laws 1917, § 3343), was previously convicted for unlawful possession of intoxicating liquor, either under a state statute or a city ordinance, he is a persistent violator under section 3345, as amended by Laws 1925, c. 10). 3. CRIMINAL LAW — APPEAL — INSTRUCTIONS — EXCEPTIONS. On ap-appeal, objections to instructions were not considered without exceptions.
Appeal from District Court, Fifth District, Iron County; Le Roy Cox, Judge.
A.G. Anderson was convicted of persistent violation of the State Prohibition Act, and he appeals.
AFFIRMED.
A.E. Moreton, of Salt Lake City, and Wm. F. Knox, of Beaver, for appellant.
George P. Parker, Attorney General, and L.A. Miner, Assistant Attorney General, for the State.
The defendant was convicted of persistent violation of the State Prohibition Act, and appeals upon the judgment roll,
Corpus Juris-Cyc. References:
Criminal Law, 17 C.J., § 3345, p. 80, n. 77.
Indictments and Informations, 31 C.J., § 269, p. 720, n. 58; § 283, p. 735, n. 75. which contains no bill of exceptions. He says the information upon which he was tried does not state a public offense, and that the trial court in its instructions erroneously failed to make a distinction between intoxicating liquor and vinegar.
The information, so far as material here, charges that the defendant, on February 24, 1929, did willfully, unlawfully, and feloniously have intoxicating liquor in his possession, and that on January 20, 1928, he had been convicted in a precinct justice's court of having the unlawful 1-3 possession of intoxicating liquor. The objection is that the information does not allege that the unlawful possession charged was without a permit or authority of law and that the allegation of the previous conviction is defective because it does not specify a conviction under the state statute.
The offense of unlawful possession of intoxicating liquor is thus defined by Comp. Laws Utah 1917, § 3343: "It shall be unlawful for any person within this state knowingly to have in his or its possession any intoxicating liquors, except as in this title provided."
A charge of this offense need not negative the exception, as the same is no ingredient or element of the offense. 31 C.J. 720; McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301.
Neither does it matter whether the previous conviction was for the violation of the state statute or of a city ordinance prohibiting unlawful possession, etc. In either case the person so convicted is a persistent violator if he thereafter violates the state law. Comp. Laws Utah 1917, § 3345, as amended by Laws Utah 1925, c. 10.
The objection to the instructions is groundless. Besides, there are no exceptions. The appeal has no merit.
JUDGMENT AFFIRMED.
STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.