State v. Burns
| Decision Date | 26 April 1910 |
| Citation | 126 N.W. 572,25 S.D. 364 |
| Parties | STATE v. BURNS. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Day County.
M. J Burns, a registered pharmacist, was convicted of violation of the law relative to the sale of intoxicating liquor, and from the conviction and an order denying a new trial he appeals. Reversed and remanded.
Sears & Potter, for appellant.
S. W Clark, Atty. Gen., C. D. Sterling, Asst. Atty. Gen., and Frank Anderson, State's Atty., for the State.
The appellant, M. J. Burns, and one Ray Burns, as defendants were jointly informed against and charged as registered pharmacists with having violated the laws of this state in relation to the sale of intoxicating liquors. The trial resulted in the conviction of M. J. Burns, appellant; the prosecution having dismissed the cause as to the defendant Ray Burns. Motion for new trial was made by M. J. Burns and overruled, and he has brought the cause before this court on appeal.
There are but two questions involved:
First. Appellant contends that he was charged with one offense and convicted of another. The information, in substance, charged that defendants, M. J. Burns and Ray Burns, were copartnership members of the firm of Burns Bros., owners of a pharmacy within the corporate limits of the town of Pierpont, Day county; that an election was held in said Pierpont on the question of "shall intoxicating liquors be sold at retail," and that a majority of the electors decided against the sale of such liquors; that the defendants as such pharmacists willfully and unlawfully sold to one Rosenlund intoxicating liquor, to wit, three quarts of alcohol and one quart of whisky, to be drank as a beverage, and which alcohol and whisky were then and there sold by defendants to said Rosenlund without a doctor's prescription therefor, and defendants not having then and there a license to sell intoxicating liquors at retail to be used as a beverage, and said liquors not having been then and there sold for medicinal, mechanical, scientific, or sacramental purposes. This information was evidently drawn under section 2860, Pol. Code, chapter 176, Laws 1907. It is clear that this information charges two separate and distinct offenses, viz., unlawful selling of intoxicating liquors by a pharmacist without a doctor's prescription within an incorporated town that has voted against such sale, and unlawful selling of intoxicating liquors by a pharmacist to be used as a beverage. The appellant did not demur or move to quash such information on the ground of duplicity, and neither did appellant move the court to require the state to elect on which one of these two offenses charged in the information the state would seek a conviction. Under these circumstances, we are of the opinion that appellant waived the question of the duplicity of the information, and, if the evidence was sufficient to sustain a conviction for either offense charged, the defendant could not be heard to complain. Bishop, Crim. Pro. §§ 436-448. We are of the opinion that there was sufficient evidence to sustain a conviction for unlawful selling as a beverage.
Appellant's second contention is that the court erred in overruling proper objections to the introduction in evidence of the paper marked "Exhibit 4," which is as follows:
Burns Bros." Rosenlund testified that on March 3, 8, and 10, 1908, at the drug store of defendants in Pierpont, he purchased from defendant, M. J. Burns, one quart of alcohol on each of said dates, to be used as a beverage, that he did not pay for the same at the time of purchase, but on March 23d following he paid for the same to Ray Burns, the brother and business partner of defendant, M. J. Burns, who was then in charge of said store, and that at the time of such payment said Ray Burns gave to him said "Exhibit 4." Although one of the questions propounded to Rosenlund by the prosecuting attorney was as follows: "I will call your attention to this...
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