People v. Keefer

• Decision Date: 26 July 1893
• Citation: 56 N.W. 105,97 Mich. 15
• Court: Michigan Supreme Court
• Parties: PEOPLE v. KEEFER.

56 N.W. 105

97 Mich. 15

PEOPLE v. KEEFER.

Supreme Court of Michigan

July 26, 1893

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Charles E. Keefer was convicted under the local option law, and appeals. Reversed.

Guy M. Chester, (Champion & Champion, of counsel,) for appellant.

A. A Ellis, Atty. Gen., and Spencer D. Bishopp, Pros. Atty., for the People.

McGRATH, J.

Respondent was convicted under the local option law. The jury brought in a general verdict. The information contains seven counts. The first count alleges that respondent "did then and there run a saloon and bar, and at said saloon and bar did then and there sell and furnish to Frank L. Fellhauer and divers other persons spirituous and intoxicating liquors, * * * and did then and there knowingly keep a saloon, where intoxicating liquors * * * were sold and furnished as a beverage. The second, third, and fifth counts allege that respondent "did then and there sell and furnish to Frank L Fellhauer" a certain quantity of other intoxicating liquors, etc. The fourth count alleged that he "did then and there keep a saloon and bar, and did then and there sell and furnish to Frank L. Fellhauer and divers other persons," etc. The sixth count alleges that he "did then and there sell and furnish to Frank L. Fellhauer and divers other persons" intoxicating liquors; the seventh count, that he did then and there keep a saloon, where liquors were stored for sale and sold and furnished.

We think the first count of the information bad for duplicity. While it is true that, as a general rule, when several cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count, if the reference is to one transaction, for which a single penalty is incurred, it is also true that where each forbidden act may be set up as a distinct offense, but several are united, the count is good in such case as for one combined act. State v Schweiter, 27 Kan. 499. In the present case the language of the statute is not followed. The sale to the party named is set up in the language of a specific offense, and then follows the allegation of another and distinct offense. While forbidden acts may be conjunctively charged in substantially the language of the statute, and the count be unobjectionable, such acts may be so set out as to charge several offenses. The court erred in refusing to order the people to elect upon which count or counts of the information they would proceed. The information specifies two distinct offenses. The forbidden acts are severed by the several counts. Certain counts charge the keeping of a saloon where liquors are stored for sale, sold, and furnished, and others charge a sale to the person named. Tiedke v Saginaw, 43 Mich. 64, 4 N.W. 627.

The second, third, fifth, and seventh counts are good. When the offense consists of the act of selling, furnishing, or giving, etc., it is essential that the person to whom sold or given, be named or identified. People v. Minnock, 52 Mich. 628, 18 N.W. 390; People v. Heffron, 53 Mich 527, 19 N.W. 170. Proof of a sale to "divers other persons" would not be admissible except to support a charge that respondent kept a saloon, where such liquors were sold, stored for sale, etc. Boldt v. State, 72 Wis. 7, 38 N.W. 177.

A number of questions arose during the selection of the jury which may be properly noticed. Upon the trial of a person charged with an offense against the local option law, a juror is not disqualified who, upon his examination, states that he voted for the local option law, or that he is in favor of the law and its enforcement, or that he is opposed to the saloon business, or believes in prohibition, or that he has conscientious scruples against the saloon business. It would be a strange rule that would disqualify a juror because he is in favor of an existing law, believes in its enforcement, and is opposed to a business which, if carried on at all, is carried on in direct violation of a positive statutory prohibition. The question to be tried was not the policy of the law, but whether or not the party charged had been guilty of its violation. Nor is a juror disqualified who states that he understands the local option law to be in force, or that he...