NO. 87-461
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SALLY A. BARNES,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sally A. Barnes, pro se, Thompson Falls, Montana
For Respondent:
Mike Greely, Attorney General, Helena, Montana
Peter Funk, Asst. Atty. General, Helena
Claude I. Burlingame, County Attorney, Thompson Falls,
Montana
Submitted on Briefs: May 12, 1988
Decided: June 21, 1988
Filed :
Mr.J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e
Court.
Sally Barnes, hereafter referred to as "defendant, "
a p p e a l s h e r c o n v i c t i o n f o r s e l l i n g b e e r and wine w i t h o u t a
v a l i d l i c e n s e from t h e Department o f Revenue, a v i o l a t i o n o f
§§ 16-6-301 and 16-6-302, MCA. W e affirm.
The r e c o r d shows t h a t t h e d e f e n d a n t ' s l i c e n s e t o s e r v e
b e e r and wine on t h e p r e m i s e s o f h e r r e s t a u r a n t was r e v o k e d
on March 1 5 , 1986 a f t e r t h e d e f e n d a n t had f a i l e d t o renew t h e
license. The record further reveals that two undercover
i n v e s t i g a t o r s were served a t o t a l o f s i x beers during three
d i f f e r e n t t r i p s t o t h e r e s t a u r a n t i n e a r l y O c t o b e r 1986 and
then obtained a search warrant t o confiscate t h e beer and
wine and related evidence. The d e f e n d a n t was charged i.n
Sanders County District Court with knowingly o r purposely
sell-ing o r keeping for s a l e a l c o h o l i c beverages without a
license.
The defendant refused t o plead t o t h e charge a t h e r
arraignment s o t h e D i s t r i c t Court e n t e r e d a not g u i l t y p l e a
f o r her. The c a s e went t o t r i a l b e f o r e a jury of Sanders
County r e s i d e n t s on May 11, 1987 and t h a t j u r y , h a v i n g h e a r d
t h e evidence presented, returned a v e r d i c t of guilty. The
d e f e n d a n t r a i s e s t h e f o l l o w i n g i s s u e s on a p p e a l :
1. Do t h e l i c e n s i n g s t a t u t e s f o r b i d h e r from s e l l i n g
o r s e r v i n g b e e r and wine w i t h o u t a v a l i d l i c e n s e ?
2. Did t h e Montana District C o u r t have jurisdiction
over the matter?
3. Does s u c h j u r i s d i c t i o n allow t h e court t o enter a
not g u i l t y p l e a on h e r b e h a l f ; t o deny h e r c h a l l e n g e t o t h e
entire pool of prospective jurors; to refuse her request to
have a non-lawyer represent her; to rule that the State need
not produce a "victim;" and to refuse her proposed
instructions?
The defendant has asserted throughout that as a natural
born, white citizen she has a common-law right to sell beer
and wine without a license from the State. The defendant's
common law rights, whatever they may be, give way to a
licensing system established by the Legislature to regulate
the sale of alcoholic beverages. The United States
Constitution contains two clauses protecting the privileges
and immunities of citizens. Article IV, Sec. 2 protects
citizens of one state from the actions of another, see Toomer
v. Witsell (1948), 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92
L.Ed. 1460, 1471; while the Fourteenth Amendment protects a
citizen's federal rights from abridgement by the states. The
protections afforded by these clauses are not absolute and
will yield to the reasonable exercise of state police powers.
Toomer, 334 U.S at 396; Travis v. Yale & Towne Mfg. Co.
(1920), 252 U.S. 60, 79, 40 S.Ct. 228, 231, 64 L.Ed. 460,
469. Not all statutes imposing regulations abridge a
citizen's privileges and immunities. Statutes regulating the
sale of alcoholic beverages under the Twenty-first Amendment
are a case in point. States have "broad power[sl under the
Twenty-first Amendment to regulate the times, places, and
circumstances under which liquor may be sold." New York
State Liquor Authority v. Bellanca (1981), 452 U.S. 714, 715,
101 S.Ct. 2599, 2600, 69 L.Ed.2d 357, 360.
Section 16-1-101(3), MCA, declares the licensing system
to be an exercise of the State's police power intended to
protect the "welfare, health, peace, morals, and safety of
the people ... " This Court has held that the sale of
alcoholic beverages is a matter that is "subject to the
regulation and control of the police power of the state
... " Feurherm & Neiss v. Schmaing (1979), 181 Mont. 136,
142, 592 P.2d 924, 927; State v. Andre (1936), 101 Mont. 366,
371, 54 P.2d 566, 568; see also Stephens v. City of Great
Falls (1946), 119 Mont. 368, 372, 175 P.2d 408, 410.
Sections 16-6-301 and 16-6-302, MCA, apply to the defendant
just as they apply to every other resident of Montana. This
latter section makes it a felony offense to sell or keep for
sale alcoholic beverages without a license. This restriction
is a valid application of the State's police power.
The defendant failed to preserve any objection to the
search warrant. However, we note also that the investigators
complied with § 16-6-102, MCA, in securing the search
warrant. The investigators were able to state of their own
knowledge that defendant was serving beer and knew from two
sources, one of them defendant's employee, that defendant did
not have a valid license. They showed the warrant to
defendant while executing the search and she was provided
with a copy of the warrant and all supporting paperwork. The
investigators knew an offense was being committed, they
established reasonable cause, and were able to describe the
place to be searched and the articles to be seized, all in
accord with S 46-5-202, MCA, and Article TI, Sec. 11 of the
Montana Constitution.
District Courts are courts of general jurisdiction and
have jurisdiction over felonies. See Article VII, Sec. 4 of
the Montana Constitution, §$ 3-5-302(1)(a), 46-2-201, MCA.
"Under section 3-5-302(1), MCA, the District Court is given
original jurisdiction in all felony criminal cases and 'cases
of misdemeanor not otherwise provided for.'" State v.
Campbell (Mont. 1981), 622 P.2d 200, 202, 38 St.Rep. 19, 21.
The defendant suggests that her status as a natural-born,
white citizen deprives the District Court of jurisdiction,
but has cited no binding authority for such a claim.
When defendant refused at her second hearing for
arraignment to enter a plea, the District Court entered a
plea of not guilty for her, in accord with S 46-12-204(1),
MCA. This did not prejudice defendant's rights. This
complies with the law, which requires a plea on the
defendant's part. See State v. Stevens (1946), 119 Mont.
169, 172, 172 P.2d 299, 301; State v. Clancy (1898), 20 Mont.
498, 502, 52 P. 267, 268.
Next the defendant claims the trial jury was improperly
constituted. Sections 3-15-301 and 3-15-303, MCA, define the
qualifications of a juror. Defendant has failed to show that
any of the jurors failed these qualifications and her effort
to challenge the whole panel was without merit since she
failed to discover any inherent interest or bias held by any
of the prospective jurors, as required in S 46-16-304 (2),
MCA. We will not disturb the District Court's ruling where
defendant has not proven an abuse of discretion. It is
apparent that defendant meant not to disqualify these jurors
but only to substitute others who might share defendant's
views concerning licensing and other government regulation.
The right of challenge is to reject individual panel members,
not to select those who might be more sympathetic. State v.
Huffman (1931), 89 Mont. 194, 198, 296 P. 789, 790.
While defendant had the inalienable right to represent
herself, she had no right to demand a non-lawyer be allowed
to represent her. Section 37-61-211, MCA, provides that only
licensed attorneys may practice law and the District Court
was without authority to allow a non-lawyer to represent the
defendant. Swift v. State (Mont. 1987), ?36 P.2d 117, 119,
44 St.Rep. 786, 789; In re White (1918), 54 Mont. 476, 478,
171 P. 759, 760. Similarly the court acted correctly when it
ruled that the State did not have to produce a "victim" of
the defendant's offense. Section 16-6-302, MCA, says that
any person who sells or keeps for sale alcoholic beverages
without a valid license is guilty of a felony. That law does
not require the State to produce a "victim" if it can show,
as the jury concluded it did here, that the defendant knew
she was without a license and decided to continue selling
beer and wine without paying her fair share for that
privilege. In a sense the entire state, and every resident
thereof other than the defendant, was the "victim" of the
defendant's conduct.
It is entirely within the discretion of the District
Court to decide how to instruct the jury. We will not
overturn except for an abuse of discretion. Although the
instructions offered by the defendant were all rejected we
note that they fail to note the law or cite Montana authority
and that the few points they do make were included in the
instructions given by the court. This does not represent
abuse of discretion. See, FJebcor Electronics, Inc. v. Home
Electronics, Inc. (Mont. 1988) , P.2d , 45 St.Rep.
695, 697; In the Matter of the Estate of Hogan (Mont. 1985),
708 P.2d 1018, 1019, 42 St.Rep. 1711, 1712. We also note
that her instructions would have allowed the jury to assume
the court's duty of determining questions of law. Section
46-16-103 (2), MCA, restates the doctrine that jurors decide
facts and judges interpret the law. We will not deviate from
that doctrine
Affirmed.
We concur:
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Justices