Martin v. State

• Decision Date: 01 October 1890
• Citation: 46 N.W. 621,30 Neb. 507
• Parties: MARTIN v. STATE.
• Court: Nebraska Supreme Court

30 Neb. 507

46 N.W. 621

MARTIN

v.STATE.

Supreme Court of Nebraska.

Oct. 1, 1890.

Syllabus by the Court.

1. Where the foreman of a grand jury indorsed on the indictment the words “True bill,” omitting the letter “A,” held sufficient.

2. In case of misdemeanor several distinct offenses of the same kind may be joined in the same indictment.

3. Instructions are to be construed together, and if, taken as a whole, they state the law correctly, they are sufficient.

4. Where intoxicating liquors have been sold on Sunday, the principal, although not personally present, will be liable, if his agents, or any one authorized by him to sell or give away intoxicating liquor in his place of business, violates the law by selling or giving away such liquors in his place of business on Sunday.

Error to district court, Lancaster county; CHAPMAN, Judge.Chas. E. Magoon, for plaintiff in error.

Wm. Leese, Atty. Gen., for defendant in error.

MAXWELL, J.

The plaintiff in error was indicted for selling liquor on Sunday, the 9th day of October, 1887. There are five counts in the indictment. On the trial of the cause Martin was found guilty on the first count, and not guilty on the others. In the court below Martin moved to quash the indictment because the foreman of the grand jury did not indorse thereon the words “A true bill.” An examination of the indictment, however, shows the words “True bill” to have been indorsed thereon, and duly signed by the foreman of the grand jury. This was sufficient, and the omission of the letter “A” before the words “True bill” was not a material defect. The motion was properly overruled, therefore. Martin thereupon filed a motion to require the state to elect upon which count of the indictment it would rely. In Burrell v. State, 25 Neb. 581, 41 N. W. Rep. 399, it was held that, in case of misdemeanor, several distinct offenses of the same kind may be joined in the same indictment. That decision was rendered after a careful examination of the authorities on the subject, and we believe the decision is correct. The offense, as charged in the case at bar, was for selling or giving away intoxicating drinks to five different persons on the 9th day of October, 1887. The offenses, therefore, are of the same kind, and were properly joined. The first count in the indictment is as follows: “The state of Nebraska, Lancaster county--ss.: Of the October term of the district court of the 2d judicial district of the state of Nebraska, within and for Lancaster county, in said state, in the year of our Lord one thousand eight hundred and eighty-seven, the grand jurors chosen, selected, and sworn in and for the county of Lancaster, in the name and by the authority of the state of Nebraska, upon their oaths present that Geo. Martin, Mrs. Kate Martin, and Fred Chapman, late of the county aforesaid, on the 9th day of October, in the year of our Lord one thousand eight hundred and eighty-seven, in the county of Lancaster, and state of Nebraska, aforesaid, then and there being, did unlawfully and willfully sell and give away malt liquors, and intoxicating drinks, to one J. A. Wolf, said 9th day of October, 1887, being the first day of the week, commonly called ‘Sunday,’ without having any authority therefor, and contrary to the form of the statute in such cases made and provided.” There is testimony in the record tending to show that, at the...