Reynolds v. State

ROSS, C. J.

(Dissenting). — The information lays the venue-of the charge in Maricopa county, state of Arizona, and whether this is correct or not is the important and serious. *402•question, as I view it. Stripped of formalities, the information accused the appellant “of the crime of introducing intoxicating liquor into the state of Arizona, . . . committed as follows, to wit: The said W. A. Reynolds on or about the twenty-third day of December, 1915, and before the filing •of this information, at and in the county of Maricopa, state of Arizona, did then and there willfully and unlawfully introduce into the county of Maricopa, state of Arizona, certain intoxicating liquor, to wit, whisky, contrary to the form, force, and effect of the Constitution and the statute in such cases :made and provided, and against the peace and dignity of the .state of Arizona.”

It is the contention of the appellant that the venue of the .-alleged crime is in the county bordering the state line into which he first brought the liquor. If I understand the con'tention of the Attorney General correctly, it is that the venue •of the alleged offense is in the county of the state which the .appellant intended as the destination of the liquors.

The contentions, it will be seen, revolve around the word “introduce,” as it appears in the constitutional amendment, .and the decision depends upon the construction that shall be •given to that word.

The amendment says: “ . . . Intoxicating liquor . . . shall not be . . . introduced into the state of Arizona,” and “every person who . . . introduces into . . . the state of Arizona _ . . intoxicating liquor . . . shall be guilty,” etc.

The language of the prohibition amendment left out of the above quotation forbids the manufacture and traffic in intoxi-cating liquor, and is an unquestioned rightful exercise of the police power of the state. Following the uniform line of decisions of all of the courts of this country, we so held in Gherna v. State, 16 Ariz. 344, Ann. Cas. 1916D, 94, 146 Pac. 494, and in Sturgeon v. State, 17 Ariz. 513, 154 Pac. 1050. .In the last case this court said:

“Three crimes are defined and denounced by this section: (1) The traffic in intoxicating liquors; (2) the manufacture • of intoxicating liquors; and (3) the introducing or attempt to introduce into the state of intoxicating liquors. The offense with which the appellant is charged falls within the third •class. It is his contention that the provision of the eonstitu.tional amendment making it a crime to introduce into the *403state intoxicating liquors is unconstitutional, as an attempt to regulate interstate commerce.”

We accordingly, in that case, treated the phase of the prohibition amendment affecting the introduction of intoxicating liquors into the state as an attempt to regulate interstate commerce, and held it unconstitutional, except in so far as it received aid from the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699 [Comp. Stats. 1913, § 8739]), an act of Congress which prohibited “the shipment or transportation . . . of . . . intoxicating liquor . . . from one state . . . into any other state, . . . which . . . intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state. ’ ’

In that case we used the word “introduce,” or rather its derivative “introduction,” as synonymous with the words “shipment” and “transportation” found in the Webb-Kenyon Act, and those words, it is readily seen, pertain to intoxicating liquors going “from one state . . . into any other state.” We said, at page 519 of 17 Ariz., page 1053 of 154 Pac:

“It being settled that traffic in intoxicating liquor in this state is a crime, it follows that the shipment, transportation or introduction of intoxicating liquor into the state with the intention to sell, barter, exchange, give away or dispose of, divests, under the Webb-Kenyon Act, such intoxicating liquor of its interstate commerce character, and leaves the state free in the exercise of its police powers to denounce such introduction as a crime and to prescribe penalties for its commission. In other words, one who introduces intoxicating liquor into the state with the purpose and intention of violating the laws of the state by disposing of the same may not now interpose the defense that he is engaged in interstate commerce, for the reason that the article that he is handling has been divested of its interstate character by the Webb-Kenyon Act.”

And again, at page 520 of 17 Ariz., page 1053 of 154 Pac.:

“We are of the opinion that, when any person introduces . . . intoxicating liquor into this state with the purpose and intention of violating any law of the state, . . . such person may be punished for his act as of a crime.”

*404The legal status of intoxicating liquors was made to depend upon the purpose for which it was brought or introduced into-the state, that is, if it was brought in for a lawful purpose, no offense against the laws of Arizona was committed, but if it was brought in for an unlawful purpose, that is, for the purpose of traffic, the act became an introduction and a crime.

Upon the construction given to the prohibition amendment by this court in the Sturgeon case, all intoxicating liquor introduced into Arizona “from any other state or territory or foreign country” to be and remain as a part of the property of the state, when introduced for an unlawful use, by virtue of the Webb-Kenyon Act, lost its interstate commerce character and became, at the instant that it crossed the state boundary line, subject to the police power of the state. In that case we held that the introduction of intoxicating liquor into-the state from without the state constituted a crime under the prohibition amendment when the introduction was for an unlawful purpose. The effort of the constitutional amendment was to stop intoxicating liquor at the boundary line of the state. The endeavor was to make it impossible for it to-enter the state, and we held, in a modified sense, that the popular edict was successful. This construction of our prohibition amendment was made possible only through the aid of the Webb-Kenyon Act, which prohibited the shipment or transportation of intoxicating liquors from one state into any other state to be there used in violation of some law of the state. But for the federal legislation, or in the absence thereof, intoxicating liquors could have been shipped or transported or introduced into Arizona and the state would have been impotent to prevent it. It seems to me that the crime of introducing intoxicating liquors into the state of Arizona is committed at the boundary line of the state, where-it is first brought into the state, and that the proper venue of the crime is the county bordering on the state line at that point. Paragraph 806 of the Penal Code, among other things,, provides: “Except as herein otherwise provided, the jurisdiction ‘of every public offense is in the county where it is committed.”

The facts of this case do not constitute an exception permitting the prosecution of the offender outside of the county in which the crime is committed. The offense is not committed *405partly in one county and partly in another. Neither do the nets or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties. One act, as defined by the prohibition amendment and explained by the court in the Sturgeon case, constitutes the offense, and that act is the introduction of intoxicating liquor into the state from outside the state for the purpose or with the intention of violating some law of the state. If intoxicating liquor is introduced into the state from without the state for a lawful purpose, the introduction in that instance is no offense, and while one may thus lawfully introduce intoxicating liquors into the state of Arizona from without the state, he may not thereafter traffic in such liquors and claim immunity from prosecution. If anyone should lawfully bring intoxicating liquor into Arizona and proceed to traffic in it, he would be guilty of a very different offense than that of introducing liquor.

Under a federal statute that made the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose a felony, the circuit and district courts of the United States have held that the jurisdiction of the offense is at the port where the alien woman or girl is first landed, as at the moment of such landing the offense is fully consummated. This has been the holding, notwithstanding the destination of such alien woman or girl may have been into some interior state of the Union and into another federal district than the one where she was first landed. United States v. Krsteff (D. C.), 185 Fed. 201; United States v. Lair, 195 Fed. 47, 115 C. C. A. 49.

In United States v. Capella (D. C.), 169 Fed. 890, the defendant was charged with having violated the federal statute which made it an offense “that any person who shall attempt, by himself or through another, to bring into or land in the United States by vessel or otherwise, any alien not duly admitted by an immigration inspector or not lawfully entitled to enter the United States.” The facts were that the defendant brought a minor child to the United States who was not entitled to enter the United States, landing her first at the port of New York; thereafter he removed her to San Francisco, where he was indicted and tried. It was the contention of the prosecution that the offense with which the de*406fendant was charged was begun in one judicial district and completed in another, and therefore he could be tried in either district, the federal statutes so providing. Answering this argument, the court said:

“The offense charged in the indictment was not one begun at the port of New York, and completed in this district, but it was entirely committed at the port of New York. It was there that the minor child, Pasqualina Ranzoni, was landed in the United States, in violation of the act of February 20, 1907, and the subsequent act of the defendant in bringing the said minor within the jurisdiction of this court is no part of the-offense of illegally bringing her into or landing her in the United States.”

It seems to me that the offense here charged against the appellant is begun and completed in the county bordering the state line into which the intoxicating liquor is first introduced into the state. It is not committed partly in one county and-partly in another. The appellee cites one case from Wyoming which he claims supports the view that the venue was properly laid in Maricopa county. Patrick v. State, 17 Wyo. 260, 129 Am. St. Rep. 1109, 98 Pac. 588.

Patrick was informed against for violating this statute r “It shall be unlawful for any person to bring into this state any sheep infected with scab or any other infectious or contagious disease, or that have in any manner been exposed to such disease.”

The proceedings against Patrick were had in an interior county of the state, and, against the contention of the defendant, the court held that the interior county had jurisdiction. It may be doubted whether the language of the statute will permit such a construction, but granting the correctness, of the court’s decision on that point, I do not think it authority in this case. The Wyoming statute was clearly within the police power of the state, which power authorizes the state to pass sanitary laws for the protection of life or property within its borders and to prevent persons or animals suffering-from contagious or infectious diseases from entering the state. Reid v. Colorado, 187 U. S. 137-151, 47 L. Ed. 108, 23 Sup. Ct. Rep. 92; Railroad Co. v. Husen, 95 U. S. 465-472, 24 L. Ed. 527.

*407The Wyoming law is not an attempt to regulate interstate commerce, nor does it do so, “but,” as is said in the Patrick case, “is rather a reasonable and necessary exercise of the police power of the state to exclude from its borders diseased sheep, the introduction of which would endanger the sheep industry of the state.” Whereas, the act of introducing intoxicating liquors into Arizona can become an offense only by reason of an interstate shipment being divested of its interstate commerce character by an act of Congress. The Wyoming act finds sanction in the police power of the state only. Ours is dependent for vitality upon co-ordinating congressional legislation.

It is well-settled law that the acts and things alleged in an indictment or information characterize and identify the offense rather than the name ascribed to those acts in the informal part of such instruments. Indeed, the name given is unimportant, and may be entirely disregarded. People v. Phipps, 39 Cal. 326. The information in this case names the offense charged against the appellant as “the crime of introducing intoxicating liquor into the state of Arizona. ’ ’ That, however, is the only expression in the information that tends affirmatively or otherwise to show that the intoxicating liquor was introduced into the state from without the state. There is no positive or affirmative allegation that the whisky which the appellant is charged to have introduced “into the county of Maricopa, state of Arizona,” was brought, shipped, transported or introduced into the state from without the state. If the pleader intended by the allegations of the information to assert that the whisky was introduced into Maricopa county from some point outside of the state, the court would be compelled to take judicial notice that it was first introduced into some other county of the state before it was introduced into Maricopa county. I think that the language of the information fails to show that the liquor was an interstate introduction. Therefore it does not conform with the requirements of section 936 of the Penal Code, in that it is not direct and certain as regards “the particular circumstances of the offense charged,” and fails to show facts “necessary to constitute a complete offense.” On the other hand, should it be considered that the information states facts sufficient to constitute a public offense, it clearly shows that *408the offense was committed in some other county than Maricopa county, and that, therefore, the venue is not properly laid.

For these reasons, I am of the opinion that the judgment of conviction should be reversed and the cause remanded, with directions that the case be dismissed.

On the constitutionality, construction and effect of Webb-Kenyon Act, see note in L. R. A. 1916C, 299.

On proof of corpus delicti in prosecution for sale of intoxicating liquors, see note in 68 L. R. A. 55, 70.