People v. Faust

California Supreme Court Jun 5, 1896 No. Crim. No. 105Published

Before: Britt

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Holding. An information charging the sale of liquor to Indians is sufficient without naming the specific individuals, and a single act of furnishing liquor to multiple persons constitutes one offense.

Issues

Whether an information charging the sale of liquor to Indians must name the specific individuals to whom the liquor was sold.
Whether an information charging the sale of liquor to two Indians constitutes more than one offense.
Whether the evidence was sufficient to support a conviction for furnishing liquor to two Indians.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The offense denounced by the statute consists in furnishing intoxicating liquor to “ any Indian”—not to those of a special description”

“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”

Synopsis

Criminal Law—Selling Liquor to Indians—Sufficiency of Information—Omission of Names—Identity of Officers.—An information charging the defendant with willfully and unlawfully selling intoxicating liquor to two Indians is not rendered insufficient in not naming the Indians; and if the defendant is again prosecuted for the same offense, he may plead the conviction, and establish the identity of the offense by parol evidence; and little aid in this regard would be furnished by designating the Indians by name, their names being seldom a matter of notoriety among the white population.

Id.—Single Offense.—An information charging the defendant with the selling and furnishing of intoxicating liquor at the same time and place to two Indians states but a single offense.

Id.—Proof of Offense Charged—Variance.—Where the defendant is charged with selling liquor to two Indians, the offense charged is substantially proved without material variance, where the evidence shows that two Indians were together in a barroom, and that one of them gave defendant money, with which he purchased a bottle of whiskey at the bar, after which both Indians repaired to a convenient place, where the defendant met them and delivered a bottle of whiskey to the Indian who paid him the money, after which both of them drank from the bottle, though not in the defendant’s presence.

Id.—Venue—Judicial Notice.—Where the evidence shows that the offense was committed in the town where the trial was held, the court will take judicial notice that it is the county seat, and is situated within the county, and the venue of the offense is sufficiently proved.

Britt, C. It is provided by section 397 of the Penal Code, as amended in 1893, that: “ Every person who [175]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 díame; [176]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.

People v. Faust

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