People v. Hickman

Michigan Supreme Court

People v. Hickman

130 N.W. 331, 164 Mich. 672, 1911 Mich. LEXIS 748

CourtMichigan Supreme Court

DecidedMarch 13, 1911

DocketDocket No. 179

StatusPublished

Cited by3 cases

This text of 130 N.W. 331 (People v. Hickman) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hickman, 130 N.W. 331, 164 Mich. 672, 1911 Mich. LEXIS 748 (Mich. 1911).

Pincite

Opinion

Ostrander, C. J.

{after stating the facts). The court erred in refusing to direct a verdict when the people had rested. There had been introduced no testimony tending to prove that respondent kept a place where intoxicating liquors were sold, stored for sale, or furnished. The court was in error in saying to the jury that one bottle of beer, partly emptied, was found there. This was conceded by counsel for the people, and the statement was corrected. The fact that beer was found on the premises, and the fact that more than a year previously respondent had kept a saloon on the same premises, is not evidence from which a jury should be permitted to find, beyond a reasonable doubt, that respondent kept the beer for sale. There is no testimony tending to prove that the cider which was sold was intoxicating liquor.

It was error, also, to permit the amendment to the information. Under the statute, evidence that the cider kept for sale was fermented liquor was sufficient without proof that it was intoxicating. People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Kinney, 124 Mich. 486 (83 N. W. 147). The amendment was not formal merely, nor made for any of the purposes mentioned in 3 [676]*676Comp. Laws, § 11922. It was made for the purpose of alleging the keeping for sale of liquors not intoxicating, or which it had been found impossible to prove were intoxicating. It was made upon the theory that the information did not allege the keeping for sale of fermented liquor, not intoxicating, and would not sustain a conviction for keeping fermented (not intoxicating) liquor for sale. The theory was correct. Respondent had neither been examined, nor had he waived examination upon a charge of keeping fermented liquor for sale, a charge made for the first time in the amended information.

The conviction must be set aside, and the respondent discharged.

Bird, Hooker, Moore, and McAlvav, JJ., concurred.

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Ostrander, C. J.

{after stating the facts). The court erred in refusing to direct a verdict when the people had rested. There had been introduced no testimony tending to prove that respondent kept a place where intoxicating liquors were sold, stored for sale, or furnished. The court was in error in saying to the jury that one bottle of beer, partly emptied, was found there. This was conceded by counsel for the people, and the statement was corrected. The fact that beer was found on the premises, and the fact that more than a year previously respondent had kept a saloon on the same premises, is not evidence from which a jury should be permitted to find, beyond a reasonable doubt, that respondent kept the beer for sale. There is no testimony tending to prove that the cider which was sold was intoxicating liquor.

It was error, also, to permit the amendment to the information. Under the statute, evidence that the cider kept for sale was fermented liquor was sufficient without proof that it was intoxicating. People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Kinney, 124 Mich. 486 (83 N. W. 147). The amendment was not formal merely, nor made for any of the purposes mentioned in 3 [676]*676Comp. Laws, § 11922. It was made for the purpose of alleging the keeping for sale of liquors not intoxicating, or which it had been found impossible to prove were intoxicating. It was made upon the theory that the information did not allege the keeping for sale of fermented liquor, not intoxicating, and would not sustain a conviction for keeping fermented (not intoxicating) liquor for sale. The theory was correct. Respondent had neither been examined, nor had he waived examination upon a charge of keeping fermented liquor for sale, a charge made for the first time in the amended information.

The conviction must be set aside, and the respondent discharged.

Bird, Hooker, Moore, and McAlvav, JJ., concurred.

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Bluebook (online)

130 N.W. 331, 164 Mich. 672, 1911 Mich. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hickman-mich-1911.

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