State v. Burchard

• Decision Date: 17 January 1894
• Citation: 57 N.W. 491,4 S.D. 548
• Parties: STATE v. BURCHARD.
• Court: South Dakota Supreme Court

57 N.W. 491

4 S.D. 548

STATE v. BURCHARD.

Supreme Court of South Dakota

January 17, 1894

Syllabus by the Court.

1. Under section 7, art. 6, of the state constitution, which provides that "in all criminal prosecutions the accused shall have the right *** to demand the nature and cause of the accusation against him; to have a copy thereof,"--the offense charged in an indictment must be set forth with sufficient certainty to enable the accused to prepare his defense in advance of the trial, to enable the trial court to know that the accused is being tried upon the identical charge passed upon by the grand jury, and to enable the accused to plead his conviction or acquittal in bar of a second indictment.

2. An indictment which charges the offense as follows: "That F. B., late of said county, yeoman, on the 1st day of March in the year of our Lord one thousand eight hundred and ninety-three, at the county of Beadle and state of South Dakota, with force of arms then and there did willfully wrongfully, and unlawfully sell intoxicating liquors, to be drank as a beverage, contrary to the statute in such case made and provided, and against the peace and dignity of the state of South Dakota,"--is insufficient, in that it does not set out the nature and cause of the accusation with that degree of certainty required by section 7, art. 6, of the state constitution.

Error to circuit court, Beadle county; A. W. Campbell, Judge.

H. W Burchard was convicted of selling intoxicating liquors unlawfully, and brings error. Reversed.

T. H Null, for plaintiff in error. Coe I. Crawford, Atty. Gen., and E. H. Aplin, for the State.

CORSON P. J.

The plaintiff in error was indicted, tried, and convicted in the circuit court of Beadle county of the crime of selling intoxicating liquors as a beverage. Omitting the formal parts, the indictment is as follows: "That Frank Burchard, late of said county, yeoman, on the 1st day of March, in the year of our Lord one thousand eight hundred and ninety-three, at the county of Beadle, and state of South Dakota, with force of arms then and there did willfully, wrongfully, and unlawfully, sell intoxicating liquors, to be drank as a beverage, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of South Dakota." On the trial, a witness having been sworn on the part of the state, the counsel for the plaintiff in error objected to the introduction of any evidence under the indictment, upon "the ground that the facts stated in the same do not constitute a public offense, and upon the further ground that the indictment is indefinite and uncertain, and does not state facts that will enable a person of common understanding to know what is intended." The court overruled the objection, to which ruling exception was duly taken. The case was then tried, and a verdict rendered for the state, upon which the accused was sentenced. At the proper time a motion in arrest of judgment was made, and also a motion for a new trial, both of which motions were overruled, and exceptions taken.

The learned counsel for the plaintiff in error contends that the indictment is insufficient, under the constitution and laws of this state, in that the offense charged is not stated with such a degree of certainty as to enable a person of common understanding to know what is intended, and to enable the accused to properly prepare for his defense. In this contention, we are of the opinion, the counsel is correct. It will be noticed by an examination of the indictment that the accused is charged with the offense of selling intoxicating liquors on the 1st day of March, 1893. The only statement tending to identify the offense is the time. Time is immaterial, and the proof of a sale at any time within the period of the statute of limitations would be sufficient; so that, in effect, the indictment only charges that the accused sold intoxicating liquors as a beverage within the county of Beadle, at some time within three years prior to the finding of the indictment. Can such an indictment be sustained under the laws and constitution of this state? Section 7, art. 6 of the state constitution provides that "in all criminal prosecutions, the accused shall have the right *** to demand the nature and cause of the accusation against him; to have a copy thereof." And section 7241, Comp. Laws, provides that "the indictment must contain *** a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended." Under these provisions of the law and constitution we are of the opinion that the offense must be set forth with sufficient certainty, not only to enable a person of common understanding to know what is intended, but with sufficient certainty to enable the accused to prepare his defense in advance of the trial, and to enable the trial court to know that the accused is being tried upon the identical charge passed upon by the grand jury when finding the indictment. Tested by these requirements, the indictment is clearly insufficient. The accused could understand from this indictment that he was charged with the offense of selling intoxicating liquors as a beverage, but to whom, when, and where, it gives him no information. Of what possible benefit would a copy of the indictment be to the accused? What preparation could he make for his defense under it? How could the trial court determine that the offense for which the accused was being tried was the one for which the indictment was found by the grand jury? The only practical method of making such an indictment sufficiently...