State v. Brennan

• Decision Date: 22 December 1891
• Citation: 50 N.W. 625,2 S.D. 384
• Parties: State v. Brennan.
• Court: South Dakota Supreme Court

50 N.W. 625

2 S.D. 384

State v. Brennan.

Supreme Court of South Dakota

December 22, 1891

Syllabus by the Court.

1. The prohibition contained in the fourth and sixth articles of the constitution of the United States is not a limitation upon the states, but exclusively upon federal power. The constitution of the United States was established by the people of the United States for their own government, and not for the government of the individual states. Each state establishes a constitution for itself, and in it provides such limitations and restrictions as its judgment dictates. These amendments contain no expression indicating an intention to apply them to state governments.

2. Enactments regulating or prohibiting the traffic in intoxicating liquors raise no question under the fourteenth amendment of the constitution of the United States. So far as the right to sell intoxicating liquors exists, it is not one of the rights growing out of citizenship of the United States, and it in no case comes under said amendment of the United States constitution.

3. When the bill of exceptions does not contain the testimony taken before the state's attorney before filing an information this court will not act upon the question of its sufficiency or insufficiency, but will presume that the state's attorney had sufficient evidence before him to sustain his action.

4. A verification of an information by a state's attorney that it is "true to the best of deponent's knowledge information, and belief," is good and sufficient under the statute.

5. An omission to state in the caption or commencement of an information the name of the court in which it is to be filed is a defect or imperfection which goes to the form, and does not tend to the prejudice of the defendant in any substantial right upon the merits. The rights of the defendant not being impaired by the omission in the information, it is not good ground for having it quashed or set aside.

6. An information stating the time when, the place where, and the person believed to be guilty of the offense of keeping intoxicating liquors for sale as a beverage, contains all the essential requisites for an information under the statute.

7. A verdict of conviction will not be set aside on the ground that the evidence does not support it when the bill of exceptions only purports to set out a part of the evidence. In the absence of an averment that the bill of exceptions contains all the evidence offered in the case, the appellate court will indulge any reasonable presumption that other evidence was introduced to support the verdict.

8. A verdict will not be set aside because detached portions of the charge, stated separately, do not correctly state the law, where it clearly appears that, taken as a whole, the charge correctly stated the law of the case, and the jury could not have been misled.

Error to county court, Minnehaha county.

Prosecution against Thomas Brennan for selling intoxicating liquors. Verdict of guilty, and judgment thereon. Defendant brings error. Affirmed.

D. E Powers and Joe Kirby, for plaintiff in error. Robert Dollard Atty. Gen., and D. R. Bailey, State's Atty., for the State.

BENNETT J.

This is a criminal proceeding, based upon an information filed in the county court of Minnehaha county, charging the plaintiff in error with the offense of keeping for sale intoxicating liquors as a beverage, in a certain frame, one-story building on Eighth street in Sioux Falls, S.D. Upon this information the plaintiff in error was tried and found guilty, and was sentenced to 60 days' imprisonment in the county jail, and to pay a fine of $100. Before the trial was had, the plaintiff in error moved to quash the information, because (1) that the law under which he was prosecuted is a violation of articles 4, 6, and 14 of the amendment to the constitution of the United States; (2) that the information is not based upon sufficient testimony to meet the requirements of section 9, c. 101, Sess. Laws 1890; (3) that the information is not properly verified, and is not sufficiently definite in alleging the crime; (4) that the warrant is void, for the reason it is not signed by the county judge with whom the information was filed. This motion was overruled. Afterwards the plaintiff in error filed his demurrer to the information for substantially the same reasons, which was also overruled.

Our attention is first directed by the assignment of errors to the overruling of the motion to quash and the judgment of the court upon the demurrer. As both are based upon the same grounds, they may be considered together. The counsel for the plaintiff in error very wisely does not contend in his brief or argument that the court below erred in overruling his motion to quash and in not sustaining his demurrer on his first ground stated; that is, that the law upon which the information is based is in violation of articles 4, 6, and 14 of the amendments to the constitution of the United States. If it had been urged, it would have been untenable. The prohibition contained in the fourth and sixth clauses, as stated, is not a limitation upon the states, but exclusively upon federal power. This is so generally conceded that it is almost needless to cite authorities to sustain the proposition. We will, however, refer to the case of Barron v. City of Baltimore, 7 Pet. 243, arising as early as the year 1833. In that case the whole question was fully considered by Chief Justice MARSHALL, upon a writ of error to the court of appeals of the state of Maryland. The error alleged was that the state court sustained the action of the defendant, under an act of the legislature, whereby the property of the plaintiff was taken for public use, in violation of the fifth amendment to the constitution of the United States. The supreme court held that its jurisdiction did not extend to the case presented, and the chief justice says: "The question presented is, we think, of great importance, but not of much difficulty. *** The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of governments framed by different persons and for different purposes." And, in conclusion, after a thorough examination of the several amendments which had been adopted, he says: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them." This construction of these amendments has since been frequently upheld by that great tribunal, in language equally decisive. In the case of Fox v. Ohio, 5 How. 434, it was declared that they "were not designed as limits upon the state governments in reference to their own citizens, but exclusively as restrictions upon federal power." See, also, Smith v. State, 18 How. 76; Withers v. Buckley, 20 How. 90. In the case of Twitchell v. Com., 7 Wall. 327, Chief Justice CHASE, after citing the case of Barron v. City of Baltimore, supra, and quoting from the opinion as above, says: "In the views thus stated and supported we heartily concur. They apply to the sixth as fully as to any other of the amendments."

Legislation similar to ours now under consideration has also been repeatedly held by the supreme court of the United States to be unobjectionable to the fourteenth amendment to the constitution of the United States. In the case of Bartemeyer v. Iowa, 18 Wall. 129, it was said that prior to the adoption of the fourteenth amendment, state enactments regulating or prohibiting the traffic in intoxicating liquors raised no question under the constitution of the United States; and that such legislation was left to the discretion of the respective states, subject to no other limitations than those imposed by their own constitutions, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the fourteenth amendment, the court said: "So far as such right exists, it is not one of the rights growing out of citizenship of the United States." In Beer Co. v. Massachusetts, 97 U.S. 25, the court says: "As a measure of police regulations, looking to the preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the constitution of the United States." In Foster v. Kansas, 112 U.S. 201-206, 5 S.Ct. 8, 97, the court said that the question as to the constitutional power of a state to prohibit the...