State v. Boughner
| Decision Date | 02 June 1894 |
| Citation | 5 S.D. 461,59 N.W. 736 |
| Parties | STATE v. BOUGHNER. |
| Court | South Dakota Supreme Court |
1. An indictment which charges that the accused, on the 4th day of July, A. D. 1893, “and at divers other days, both before and after that date,” did unlawfully sell certain intoxicating liquors *** to divers persons, whose names to the grand jury are unknown, charges but one offense. The clause, “and on divers other days,” etc., may be rejected as surplusage.
2. Persons whose names are not indorsed upon the indictment may be examined as witnesses on the trial on the part of the state. The decision in the case of Territory v. Godfrey, 50 N. W. 481, 6 Dak. 46, followed.
3. By section 7374, Comp. Laws, the jury in criminal cases, except in case of libel, “are bound to receive as law what is laid down as such by the court.” It was not error, therefore, on the part of the court, to refuse permission to the counsel for the accused to read the law to the jury.
4. The prohibition law of this state, so far as it relates to the unlawful sale of intoxicating liquors, was held constitutional in State v. Becker (S. D.) 51 N. W. 1018, and this court declines to consider the question of the constitutionalityof other parts of the law, which in no manner affect the accused.
5. Where an indictment charges that intoxicating liquors were unlawfully sold to persons whose names are to the jurors unknown, and states the time and place and the nature of the liquors sold, it sufficiently designates and points out the offense, within the rule laid down in State v. Burchard (S. D.) 57 N. W. 491.
6. An indictment which charges the accused with unlawfully selling intoxicating liquors to persons to the jurors unknown, specifying the time and place, etc., states a public offense.
Error to circuit court, Codington county; A. W. Campbell, Judge.
S. N. Boughner was convicted of selling liquors illegally, and brings error. Affirmed.
F. E. Van Liew and Bennett & Sheldon, for plaintiff in error. Coe I. Crawford, Atty. Gen., and Lee Stover, State's Atty., for the State.
The plaintiff in error was indicted by the grand jury of Codington county for selling intoxicating liquors, tried and convicted, and has sued out a writ of error to obtain a reversal of same. The material part of the indictment, omitting all formal parts, is as follows: “The grand jury of the state of South Dakota, in and for the county of Codington, *** on their oath do charge and present that one S. N. Boughner, late of said county, on the 4th day of July, A. D. 1893, and at divers other days both before and after said date, did, at and in the county of Codington and state aforesaid, unlawfully sell certain intoxicating liquors, to wit, whiskey and beer, to divers person, whose names to this grand jury are unknown, to be used and drank as a beverage, and were not so sold for medical, mechanical, sacramental, or scientific purposes.” The plaintiff in error demurred to the indictment upon the following grounds: (1) That more than one offense is charged in the indictment; (2) that said indictment is uncertain as to time. This demurrer was overruled.
As will be observed, the only objections raised by the demurrer to the indictment are that more than one offense is charged, and that the same is uncertain as to time. We are of the opinion that only one offense is charged. It is true, the accused is charged with selling intoxicating liquors on the 4th of July, 1893, “and at divers other days, both before and after said date.” This last clause in the indictment “may be rejected as surplusage.” Black, Intox. Liq. § 460. Omitting the clause referred to, and the indictment states the time definitely, and states but one offense, namely, the sale of intoxicating liquors on that day. On the trial witnesses were called and examined whose names were not upon the indictment, to which objection was taken, and this is assigned as error. This question was decided by the late territorial supreme court in Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481, and the court there held such evidence admissible. We are of the opinion that the evidence was properly admitted, following the decision of that case. See, also, State v. Abrahams, 6 Iowa, 117;People v. Jocelyn, 29 Cal. 562;State v. O'Day, 89 Mo. 559, 1 S. W. 759.
It is also insisted that the evidence was not sufficient to prove that the liquors sold were intoxicating. We think there was sufficient evidence to warrant a jury in so finding in this case. The witness Weeks testified, that the “beer that he got there at that time he should think was intoxicating if a man drank enough of it.” This, in the absence of any conflicting evidence, was sufficient proof that the beer was intoxicating to warrant a jury in finding that such was its character.
It is also contended that counsel for the plaintiff in error should have been permitted to read the prohibition law to the jury. We are of the opinion that the court ruled correctly in refusing counsel this privilege. In this jurisdiction, except in cases of libel, the jury must take the law as given them by the court, in criminal as well as in civil cases. Sections 7372 and 7374 read as follows: “The court must decide all questions of law which arise in the course of the trial.” “On the trial of an indictment for any other offense than libel, questions of law are to be decided by the court, and questions of fact are to be decided by the jury; and, although the jury have the...
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