State v. Bradley

• Decision Date: 02 October 1901
• Citation: 87 N.W. 590,15 S.D. 148
• Parties: STATE v. BRADLEY.
• Court: South Dakota Supreme Court

87 N.W. 590

15 S.D. 148

STATE v. BRADLEY.

Supreme Court of South Dakota

October 2, 1901

Error to circuit court, Davison county; Frank B. Smith, Judge.

Joseph P. Bradley was convicted of unlawfully selling intoxicating liquors to a minor, and he brings error. Reversed.

T. J Spangler and A. B. Kittridge, for plaintiff in error. John L Pyle, Atty. Gen., for the State.

FULLER P. J.

As a point requiring the reversal of a judgment forfeiting the license of plaintiff in error to sell intoxicating liquors and imposing a fine of $100 it is claimed by his counsel that more than one offense is charged in the following information: "That Joseph P. Bradley, late of the county aforesaid, yeoman, on the 7th day of March, in the year of our Lord 1900, at the city of Mitchel, in the county of Davison and state of South Dakota, then and there did unlawfully sell, furnish, and give away spirituous, malt brewed, fermented, and vinous liquors to one William Hannett he, the said William Hannett, being then and there a male person under the age of twenty-one years." Section 11, c. 72, Laws 1897, provides that: "It shall not be lawful for any person to sell, furnish or give away any spirituous, malt, brewed, fermented or vinous liquors to any minor. *** The fact of selling, giving or furnishing any liquor in any place where intoxicating liquors are sold or kept for sale to any minor, *** shall be prima facie evidence of an intent on the part of the person so selling, giving or furnishing said liquor to violate the law." As the willful act of supplying a minor with intoxicating liquor violates the statute, and subjects the offender to a single penalty, regardless of the precise nature of the transaction, an information reciting in substance that at a specified time and place the accused sold, furnished, and gave such liquor to a person named, who was then and there under the age of 21 years, charges but one offense, and proof of either of such prohibited acts is entirely sufficient. It appears to be well settled that, when several acts governed by the same penalty, and similar in effect, are forbidden disjunctively in a penal statute, the pleader may generally charge them all conjunctively in a single count. In State v. Schweiter, 27 Kan. 499, it was so held in construing a statute like this, and the court say: "Where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons and at different times, they may, when committed by the same person, and at the same time, be coupled in one count, as constituting all together one offense only. In such cases the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction." Mr. Black thus states the prevailing doctrine: "It is a general rule that, where several cognate acts are forbidden in the statute disjunctively, the complaint or indictment may ordinarily charge them all conjunctively in a single count, if the reference is to one transaction, for which a single penalty is incurred. In accordance with this rule it is held that, if the statute makes it an offense for any one to 'sell or give away' intoxicating liquors, the indictment may charge that the defendant 'did sell and give away' such liquors, without being open to the charge of duplicity." Black, Intox. Liq. 441. As the doing of either one or all of the forbidden acts in the manner specified in the information constitutes but a single offense, the gravamen of which is the disposition of intoxicants to a minor, they may be charged conjunctively, and the following authorities so hold: Com. v. Miller, 107 Pa. 276; Com. v. Dolan, 121 Mass. 374; State v. Pittman, 76 Mo. 56; Boldt v. State, 72 Wis. 7, 38 N.W. 177; State v. Brown, 36 Vt. 560; State v. Ball, 27 Neb. 601, 43 N.W. 398; U. S. v. Hull (D. C.) 14 F. 324; Com. v. Nichols, 10 Allen, 199; Com. v. Eaton, 15 Pick. 273; State v. Nolan, 15 R. I. 529, 10 A. 481. Consonant with the view that the accused stood charged by the statute with full knowledge that the person procuring the liquor was a minor, and that good faith and honest intent was no defense, the trial court excluded all testimony of that character,...