State v. Certain Intoxicating Liquors

177 P. 235, 53 Utah 171, 1918 Utah LEXIS 15

Opinions

CORFMAN, J.

This was an action brought on behalf of the plaintiff, the state of Utah, against certain intoxicating liquors, under the provisions of chapter 2, Laws of Utah 1917, prohibiting and regulating the sale, manufacture, use, possession, etc., of intoxicating liquors within the state.

It appears from the record here that on September 20,1917, affidavit was made and filed in the district court for Weber county that certain intoxicating liquors were then unlawfully held at the Paris Hotel in Ogden City, Utah, and that thereupon a search and seizure warrant was duly issued commanding the sheriff of said Weber county to search said premises and seize the liquors alleged to be on said premises. In executing the warrant a large quantity of liquor, to-wit, “sixteen gallon jugs, five gallon jugs and three gallon jugs of wine, thirty-nine bottles of beer, twenty-two pint flasks of whisky, fourteen one-half pints of whisky, three broken pints of whisky, one ten-gallon keg of wine, three barrels of bottled wine, twelve barrels of wine, each containing about fifty gallons, and forty-five broken bottles of wine and whisky,” was found on the said premises and taken into possession by the said sheriff. After seizure of the liquors, notice was given all persons to show cause why the same should not be forfeited as provided by law, and thereafter, October 13, 1917, Joseph Laueirica appeared in said action claiming the liquors. Thereupon an order was made by the said district court making him a party defendant in said action. Thereafter, the defendant Joseph Laueirica filed his answer in said action, claiming said liqours and alleging that — •

“He had the same in his home and was then and there using the same for his own family use, and that he and his family used said beverages instead of tea and coffee and as a part of their regular meals, and that he made no other use or disposition of said goods and liquors.”

The said defendant further alleged that he had been tried on September 22, 1917, in the municipal court of Ogden City, Utah, upon a criminal charge brought by the state of Utah against him for unlawfully having the said liquors in his possession, and that after a trial in said court, involving the identical issues then before the district court, he had been duly acquitted, and that said former adjudication and acquittal was a bar to this proceeding.

It appears from the record that other preliminary proceedings were had before the district court, not material here nor necessary to mention in the consideration of the defendant’s appeal to this court.

The case was tried to the court without a jury. The trial court found the issues in favor of the plaintiff and ordered and adjudged that the liquors seized be forfeited to the state of Utah; that they be destroyed by the sheriff of Weber county; and that their retainers be sold at public auction as provided by statute. The defendant, Joseph Laucirica, relies upon, complains of, and assigns as errors on the part of the district court:

First. The refusal of the trial judge to grant a change of venue and a continuance upon defendant’s application.

Second. The refusal to grant the defendant a jury trial.

Third. The refusal to entertain the evidence of defendant’s former acquittal in the municipal court of Ogden City, pleaded in bar to plaintiff’s action.

1, 2 We think every assignment of error contended for by the defendant is wholly without merit. The answer of the defendant wherein he claimed the liquors and alleged that they were kept, held, and used by him and his family as a beverage, presented no issue to be tried by the district court, but fully established the fact that they were contraband liquors and subject to seizure, forfeiture, and destruction under the statute and the former rulings of this court. Section 3, c. 2, Laws Utah 1917; section 26, supra; State v. Certain Intoxicating Liquors, 51 Utah, 569, 172 Pac. 1050. But, assuming that the district court had before it some issue to try, the first contention made, that the court erred in refusing to change the place of trial upon application of the defendant, supported by affidavit, cannot be sustained. That matter rested within the sound discretion of the trial court. While the action of the court in exercising its discretion in that regard is subject to review by this court, a reversal will not be granted unless' it is clearly made to appear that there was an abuse of such discretion. State v. Carrington, 15 Utah, 480, 50 Pac. 526. The record here not only shows that the trial court found that many of the allegations of defendant’s affidavit were untrue, but, if admittedly true, wholly insufficient to warrant the granting of the order applied for.

3 We think the refusals of the district court to grant the defendant a continuance, denying a trial by jury, and to entertain the evidence of a former acquittal of the defendant before the municipal court, were wholly justified in view of the record before us. While ordinarily, under the provisions of the statute, section 17, c. 2, Laws Utah 1917, the trial of this class of cases is to be conducted as in criminal prosecutions, and it is therein expressly provided that “if any person shall appear and be made a party * * ® and .shall make a written plea that said liquors, vessels or other property or any part thereof, 'claimed by him, were not owned or kept with intent To'be used in violation of the law, such party defendant may demand a jury to try the issue,” yet when, as here, the defendant, by his pleading, admitted that he claimed the liquors and kept and held them for purposes clearly in violation of the statute, there was no issue to be tried to the court or a jury, and the- court very properly assumed the initiative and rendered judgment that the liquors should be forfeited and destroyed.

4 The acquittal of the defendant in the municipal court of Ogden City had no bearing on the issues involved in this action. This proceeding whs directed wholly! against the liquors in the interests' of' the public, not for the purpose of subjecting the defendant Laucirica to any penalties, nor was he placed in jeopardy before the court by becoming a party to the action. Therefore the impaneling of a jury because of the defendant’s appearance and voluntarily becoming a party to tbe action, on the ground of his claiming an interest in the liquors and pleading an acquittal-in a former proceeding in another tribunal in which he had been prosecuted criminally, would have rendered these proceedings farcical.

AYe find no merit in this appeal, and therefore it is ordered that the judgment of the district court be affirmed. Costs to respondent.

■FRICK, C. J., and McCARTY and THURMAN, JJ., concur.