State v. Ely

• Decision Date: 09 December 1908
• Citation: 118 N.W. 687,22 S.D. 487
• Parties: STATE v. ELY.
• Court: South Dakota Supreme Court

118 N.W. 687

22 S.D. 487

STATE v. ELY.

Supreme Court of South Dakota

December 9, 1908

Appeal from Circuit Court, Kingsbury County.

Charles E. Ely was convicted of engaging in the business of selling intoxicating liquor without a license, and he appeals. Affirmed.

Hall Lawrence & Roddle, for appellant.

S. W Clark, Atty. Gen., Wm. H. Warren, State's Atty., and Chas. P. Warren, Asst. State's Atty., for the State.

CORSON J.

Upon an information duly filed by the state's attorney of Kingsbury county, the defendant was tried and convicted of the offense of engaging in the business of selling intoxicating liquors at retail without a license. From this judgment, the defendant has appealed to this court.

The information, omitting formal parts, is as follows: "That on the 1st day of May, A. D. 1907, and thereafter continuously down to the 10th day of June, A. D. 1907 inclusive, in the county of Kingsbury, state of South Dakota the said Charles E. Ely did then and there engage in the business of selling brewed, malt, fermented, and intoxicating liquors at retail, without having paid to the said county of Kingsbury, state of South Dakota, or the treasurer thereof, the license fee required by article 6 of chapter 27, Revised Political Code of South Dakota, contrary to the statute in such case made and provided, and against the peace and dignity of the state of South Dakota." Defendant moved to set aside the information, which motion was denied, and thereafter he interposed a demurrer to the information, on the ground, in substance, that the facts stated do not constitute a public offense. Numerous errors are assigned in the record, but the learned counsel for the defendant has condensed them into the four following propositions: "First. The demurrer of the defendant upon the ground that the information does not state any public offense, in that it fails to show that the business could be engaged in in said city and county, and the sole offense charged being engaging in the business without paying the fee. Second. The refusal of the court to require the state to elect upon what date of engaging in the business the state relied upon and in permitting the case to go to the jury without election and instructing the jury that they could find any date between May 1st and June 10th. Third. The error of the court in instructing the jury that they could find the defendant guilty of the sale of brewed or malt liquors, regardless of whether the said liquors were in fact intoxicating liquors. Fourth. The error of the court in instructing the jury that they could find the defendant guilty for selling a mixture which contained any percentage of intoxicating liquors; there having been no issue in the case as to mixtures or compounds." It is contended by the appellant that the information is based upon section 2838 of the Revised Political Code, which provides for an offense which may be committed only where it is lawful to engage in the business of selling intoxicating liquors, and only unlawful when such business is engaged in without paying the fee for such license, and that the information is designated as engaging in the business without a license; and the appellant further contends that the defendant could not be found guilty of such an offense without the information containing an allegation, and, there being proof that such a business could be engaged in in the locality in which the information applies-in other words, a law which is not in force cannot be violated, and that by the law as contained in chapter 124, p. 180, Laws 1905, which provides, "No license shall be granted to any person or persons to sell intoxicating liquors under the provisions of this act in any township, town or city in this state, where a majority of the electors of such township, town or city have not voted in favor of granting such license at the last general municipal election," it must affirmatively appear that such a vote had been had which resulted in permitting a license to be granted, and that it does not affirmatively appear that the appellant could have obtained such license. And the appellant further contends that "engaging in the business" of selling intoxicating liquors is a different offense from that of the selling of intoxicating liquors as a beverage. But this contention is clearly untenable. The provisions of section 2838 making it unlawful for any person to engage or be engaged in any business requiring the payment of a license under section 2834 without having paid the same is guilty of a misdemeanor is, in effect, substantially the same as the former statute in this state prohibiting the sale of intoxicating liquors without a license. There is practically no distinction between the two forms of expression, and the Legislature in the section referred to simply defines the offense in different language by using the term "engaging in the business," and we shall treat the expression used in the statute, "engaging in the business without a license," as equivalent to the term of "selling without a license."

The contention of appellant that the provisions of sections 2838 and 2834 only applies to cases where the law authorizing the sale of intoxicating liquors by the payment of a license is in force is also clearly untenable. The late territorial Supreme Court in construing the law as contained in chapter 71, p. 189, Laws 1887, providing for a vote to prohibit the sale of intoxicating liquors, held that a party might be prosecuted for the selling of intoxicating liquors, although prohibition was in force in the county at the time of the commission of the alleged offense, and the court says in its opinion: "The offense was selling liquor without a license, and it was immaterial upon that question whether or not Spink county had voted for or against the sale, or whether 'local option' was in force when the indictment was presented. The penalty for selling liquor without a license remained the same through all changes regarding 'local option.' No vote affected it." And this court took substantially the same view in the case of State v. McIllvenna, 21 S.D. 489, 113 N.W. 878 and also in the case of State v. Mudie, 21 S.D. ___, 115 N.W. 107. In the latter case this court says: "The contention that the fact stated in the indictment and agreed statement of facts upon which the action was tried does not constitute a public offense because they do not show whether a license could have been procured by any one in Centerville, where the business was conducted, is not tenable. 'The law prohibits every person who has not first obtained a license from engaging in the sale of intoxicating liquors at retail anywhere in the boundaries of this state' [citing State v. McIllvenna, 21 S.D. 489, 113 N.W. 878]. Therefore the reason why defendant had not procured a license was wholly immaterial; and...