Summary
In State v. Adair, 70 Idaho 486, 487, 222 P.2d 741, the appellant sought reversal on the ground there was no evidence showing that he was the party who sold the liquor and that, consequently, the court should have directed an absolute acquittal in accordance with State v. McCarty, 47 Idaho 117, 272 P. 695.
Summary of this case from State v. McCallumOpinion
No. 7655.
September 29, 1950.
APPEAL FROM DISTRICT COURT FOR THE 9TH JUDICIAL DISTRICT BONNEVILLE COUNTY, HENRY S. MARTIN J.
W.K. Naylor, Idaho Falls, for appellant.
Robert E. Smylie, Atty. Gen., J.R. Smead, Asst. Atty. Gen., John M. Sharp, Pros. Atty., Idaho Falls, for respondent.
An essential element of proof in criminal actions is the identity of the person accused and in this case such element of proof is entirely lacking because there is no evidence which established the identity of the accused. "Proof of the charge in criminal causes involves the proof of two distinct propositions; first, that the act itself was done, and, secondly, that it was done by the persons charged and no others; in other words, proof of the corpus delicti and of the identity of the persons. (3 Greenleaf on Evidence, sec. 30.)" State v. Sullivan, 34 Idaho 68, 74, 199 P. 647, 17 A.L.R. 902.
As to identification of the person on trial, it need not be positive or certain. People v. Young, 102 Cal. 411, 36 P. 770; People v. Wilson, 76 Cal.App. 688, 245 P. 781; State v. Morrow, 63 Wn. 297, 115 P. 161; State v. Denby, 143 Wn. 288, 255 P. 141.
Appellant was convicted of the misdemeanor of selling intoxicating liquor out of hours in violation of Section 23-927(b), I.C.
He seeks reversal on the ground there was no evidence showing that he, the defendant, was the party who sold the liquor and that, consequently, the court should have directed an absolute acquittal in accordance with State v. McCarty, 47 Idaho 117, 272 P. 695.
The State relies upon identification of the defendant as the party who sold the liquor, upon arraignment of defendant and entry of his plea of "not guilty." This, of course, is no evidence at all that the defendant was the party who sold the liquor.
The only evidence as to the transaction or the identity of the individual was the testimony of one Theron Roundy, then a Deputy Sheriff, that in the Broadway Club in Idaho Falls, Bonneville County, about twelve minutes after one o'clock a.m. on May 12, he saw a "Mr. Adair" at the end of the counter and behind the bar; that he talked with Mr. Adair and that he purchased a drink from a Mr. Adair over the counter, the drink having been prepared by a Mr. Adair; that he ordered the drink from "Eddie Adair." There was absolutely no testimony at all that Ernest Adair and Eddie Adair are the same person or that Ernest Adair, who was arrested and prosecuted, was the "Mr. Adair" who sold the liquor.
Some states evidently have statutes as to a presumption or inference of identity from identity of names, State v. Cunningham, 173 Or. 25, 144 P.2d 303 at 314; Charlie Wong v. Esola, 9 Cir., 6 F.2d 829. We have none, but even under such presumption or inference, there was here only identity of surname — thus entire absence of identification. 65 C.J.S., Names, §§ 2 and 3, p. 2.
There thus being a total lack of evidence to identify the defendant as the party who sold the liquor, People v. Coyodo, 40 Cal. 586; State v. Sullivan, 34 Idaho 68 at 74, 199 P. 647, 17 A.L.R. 902; and State v. McCarty, supra, the court should have directed an absolute acquittal.
The judgment is, therefore, reversed and remanded with instructions to the trial court to enter judgment of dismissal.
PORTER, TAYLOR, and KEETON, JJ., and KOELSCH, District Judge, concur.