State v. Dunning

• Decision Date: 02 April 1901
• Citation: 14 S.D. 316,85 N.W. 589
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. PHILOMEN DUNNING and Charles Longstaff, Plaintiffs in error.
• Court: South Dakota Supreme Court

14 S.D. 316, 85 N.W. 589 (1901)

STATE OF SOUTH DAKOTA,

Defendant in error,

v.PHILOMEN DUNNING and Charles Longstaff,

Plaintiffs in error.

South Dakota Supreme Court

Error to Circuit Court, Beadle County, SD

Hon. A. W. Campbell, Judge

Reversed

M. A. Lynch, E. H. Aplin

Attorneys for plaintiffs in error.

John L. Pyle, Attorney General

H. S. Mouser, State’s Attorney

Attorneys for the state.

Opinion filed April 2, 1901

HANEY, J.

The indictment charges that defendants were engaged in the business of selling spirituous, malt, and brewed liquors as a beverage, at retail, without having obtained a license therefor, on March 1, 1898. A witness for the government was permitted to answer the following questions:

“State whether or not you ever purchased any intoxicating liquors there prior to the4th of last March, when this indictment was returned.”

“Have you, except these two instances that you have detailed, purchased any intoxicating liquor there at any other time prior to the 4th of last March?”

The statute upon which the prosecution is predicated, went into effect March 3, 1897 (Laws 1897, chap. 72, § 29). The evidence should have been restricted to sales made between the time when the statute took effect and when the indictment was presented. There is nothing in the foregoing questions, taken in connection with the entire testimony, to avoid the contention that all the sales alluded to by him may have been made prior to the taking effect of the statute. Without the evidence of this witness the jury might not have agreed upon a verdict of guilty. We think its introduction was reversible error.

It is contended that the court erred in charging the jury that defendants could be convicted under section 5, chap. 72, Laws 1897, as having engaged in the business of selling intoxicating liquors without a license, when it should have charged that there could be a conviction only under section 27 of that chapter. Section 5 is as follows:

“If any person or persons shall engage or be engaged in any business requiring the payment of license under section one (1) of this act, without having paid in full the license required by this act, and without having the receipt and notice for such license posted up as required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specified penalty provided therefor by this act, shall be punished by a fine of not less than fifty dollars ($50) nor more than five hundred dollars ($500) and costs of prosecution, or by imprisonment in the county jail not less than ten days nor more than thirty days, or by both such fine and imprisonment in the discretion of the court; and in case such fine shall not have been paid at the time such imprisonment expired, the person serving out such sentence shall be further detained in jail until such fine and costs shall have been fully paid as provided by statute; and any person or persons engaged in any business requiring the payment of a license under section 1 of this act, who, after paying the license so required, shall be convicted of a violation of any of the provisions of this act, shall thereby, in addition to all other penalties prescribed by this act, forfeit the license so paid by him or them and be precluded from continuing such business for the remainder of the year or time for which said license was paid, and be debarred from again engaging in any business requiring the payment of a license under section 1 of this act, or from becoming a surety or sureties upon any bond required under section 6 of this act, from the time of such conviction. Each violation of any of the provisions of this act shall be construed to constitute a separate and complete offense, and for each violation on the same day or on different days, the person...