State v. Baden

• Decision Date: 18 July 1887
• Citation: 37 Minn. 212,34 N.W. 24
• Parties: STATE v BADEN.
• Court: Minnesota Supreme Court

37 Minn. 212

34 N.W. 24

STATEvBADEN.

Supreme Court of Minnesota.

July 18, 1887.

(Syllabus by the Court.)

Under the provisions of section 229 of the Penal Code, beer is not one of the articles permitted to be publicly sold on Sunday.

Under that section a purchaser is not particeps criminis, nor does the fact that he is in pursuit of evidence against persons selling contrary to the provisions of the statute make him an accomplice.¹

Appeal from district court, Hennepin county; REA, Judge.

Indictment under Pen. Code Minn., § 229, for publicly selling certain property on Sunday. The indictment charged: “That said George Baden did, on the twenty-third day of January, A. D. 1887, at the city of Minneapolis, in said Hennepin county, willfully, unlawfully, and wrongfully, publicly sell upon Sunday, certain property, to-wit: one glass of beer, to one P. A. Smith, said glass of beer not being then and there sold as an article of food, drug, medicine, or surgical appliance, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Minnesota.” The evidence tended to show that said Smith, named in the indictment, together with two others, was employed on the day in question to go around to the various saloons in Minneapolis for the purpose of discovering how many were open and doing business on Sunday, and obtaining evidence to that end. They entered defendant's saloon by a side door, ordered and paid for beer, and drank the same over the bar; defendant and other persons being in the room at the time. On the trial, defendant excepted to that portion of the judge's charge to the jury which is as follows: “It is only necessary that the jury should find that it [the beer] was sold by him, [defendant,] or by his directions, or his consent, in a place over which he had control, where he had a right to prevent or consent to it. If sold in such a place it must have been sold by him or by his approbation and consent.” Verdict of guilty. From an order denying a new trial defendant appeals.

M. E. Clapp, Atty. Gen., and F. F. Davis, for the State.

Thos. J. Leftwich and Ben Davenport, for Baden, appellant.

VANDERBURGH, J.

The indictment is for an alleged violation of section 229 of the Penal Code.

1. The indictment is sufficient. It is a matter of common knowledge that the species of property designated as having been sold by the defendant, on Sunday, as alleged, is within the class or kind of property the sale of which is prohibited by the statute on that day, and not among the articles whose sale is permitted.

2. The jury could not, we think, have been misled by the instructions of the court in respect to the nature of the charge which the state was required to prove in order to make out its case. The court distinctly stated to the jury that the defendant was charged with having publicly sold the property. The statute was read to them, and they were instructed that they must be satisfied from the evidence, beyond a reasonable doubt, that the defendant was guilty of the act as charged.

3. The evidence in the...