City of Sioux Falls v. Famestad
| Decision Date | 14 February 1946 |
| Docket Number | 8799. |
| Citation | 21 N.W.2d 693,71 S.D. 98 |
| Parties | CITY OF SIOUX FALLS v. FAMESTAD. |
| Court | South Dakota Supreme Court |
Danforth & Danforth, of Sioux Falls, for appellant.
Roy D. Burns and R. G. May, both of Sioux Falls, for respondent.
The appellant, Edith Famestad, was convicted and sentenced in the Municipal Court of the City of Sioux Falls, South Dakota after a jury trial upon a complaint charging her with the violation of a city ordinance prohibiting sales of intoxicating liquor without having a state license authorizing such sales. She has appealed from an order of the trial court denying a motion in her behalf for a new trial.
The rulings of the trial court assigned as errors will be reviewed in the order in which the same are treated in the briefs of counsel.
The first point urged by appellant is that the state's sole witness to the illegal sale, the purchaser of a pint of whiskey, was an accomplice and that in the absence of corroborating proof the conviction upon the testimony of said witness cannot be sustained. The undisputed testimony as to the effect that the purchaser of the whiskey was engaged by the law enforcement officers at Sioux Falls to assist in the apprehension of law violators and the suppression of illegal liquor sales. A person so engaged is not an accomplice and his testimony need not be corroborated. State v. Plucker S.D., 21 N.W.2d 280, and authorities therein cited.
The contention that appellant was the victim of an entrapment cannot be sustained upon the record testimony. The purchaser of the whiskey merely furnished appellant an opportunity to make an illegal sale and to supply evidence of the transaction. That such circumstance furnishes no defense has been decided by this court in State v. Plucker, supra, and in State v. Johnson, 49 S.D. 414, 207 N.W. 216.
During the course of the trial appellant offered to show that a search of her premises three days subsequent to the date of the sale for which she was held to trial failed to disclose that liquor was then kept at her place of business. The court refused such offer. We believe that said offer was properly refused. Proof of the absence of intoxicating liquor at appellant's place on a subsequent date would be of no aid to the jury in determining whether or not an illegal sale had been made as charged in the complaint.
One of the grounds upon which appellant sought a new trial is predicated upon a showing by affidavit to the effect that a number of persons might testify at a retrial that the state's sole witness to the illegal sale was a person whose reputation for truthfulness was bad. Countering such showing the city submitted to the trial court documents bearing the signatures of a number of persons who subscribed to the good reputation of said witness for veracity.
As held by this court in State v. Plucker, supra, and cases cited therein, a new trial will not be granted for newly discovered evidence which when produced would merely discredit a witness who testified at the trial.
After pleading to the complaint and proceeding to trial thereon and after the verdict of the jury had been returned, appellant for the first time challenged the propriety of preferring the charge in the form of a complaint and moved for arrest of judgment upon the further ground that the complaint failed to charge a violation of law. The complaint charges that the defendant 'did violate Sec. 9.101 of Ordinance No. 1370 of the said City of Sioux Falls, in that said defendant at and in said City and on said date did sell intoxicating liquor, to-wit: one pint of whiskey, to another person without having a license therefor as required by Title 5 of the South Dakota Code of 1939 as amended, contrary to the provisions of said Ordinance of said City, * * *'
We need not determine whether or not the complaint describes a public offense within the meaning of SDC 34.3514. The complaint undertakes to...
To continue reading
Request your trial