State v. Dick
| Decision Date | 25 November 1891 |
| Citation | 50 N.W. 362,47 Minn. 375 |
| Parties | State of Minnesota v. Henry Dick |
| Court | Minnesota Supreme Court |
Defendant was tried and convicted in the district court for Wright county, before Pond, J., on an indictment for selling "intoxicating liquor, to wit, beer," "on the 30th day of November, A. D. 1890, being the Sabbath day," and was sentenced to pay a fine of $ 75, and costs of prosecution, and to 30 days' imprisonment in the county jail, and to stand committed until payment of the fine and costs. He appeals from the judgment and from an order denying a new trial.
Order and judgment affirmed.
A. Y Eaton and W. H. Cutting, for appellant.
H. W Childs, for the State.
1. Upon the points that the grand-jury list had not been certified and signed by the chairman of the board of county commissioners, as required by law, and that the court erred in calling in two grand jurors by special venire, we hold, as we did in State v. Schumm, supra, p. 373, that the objection by motion to dismiss the indictment was not made in time. It was not made until after the defendant had pleaded to the indictment. While he was afterwards allowed to withdraw his plea of not guilty, it does not appear that this was allowed for the purpose of enabling him to make such a motion. His right to make the motion had expired, and it is not shown that there was any cause made known for allowing it to be done out of time, or that the court exercised its discretion in his favor in this particular. The ruling of the court on the motion may have been based upon the very fact that it was made too late.
2. It is urged that the evidence was insufficient to show that the beer sold was intoxicating liquor, or that the defendant was responsible for the sale or disposition of it. As to the latter fact -- the responsibility of the defendant -- the evidence was sufficient to justify the conclusion that he was really carrying on, or at least was interested as a party in, the business of the saloon, and that he was present when the beer was furnished to McDougall.
The more serious question is whether the case showed that the beer was intoxicating liquor. No direct evidence was presented upon this point, and only this state of facts was shown: The transaction was in a drinking saloon, where a bar was kept, and beer and whiskey sold. A man was behind the bar, waiting on customers, supplying them with beer and whiskey. McDougall procured and drank both beer and whiskey -- "a glass of beer, a common beer glass." The defendant was operating a brewery, and manufactured the beer that was sold in this saloon. Now, what was the meaning and scope of the proof of the sale of "beer"...
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