State v. Grant

• Decision Date: 24 October 1905
• Citation: 105 N.W. 97,20 S.D. 164
• Parties: STATE v. GRANT.
• Court: South Dakota Supreme Court

105 N.W. 97

20 S.D. 164

STATE v. GRANT.

Supreme Court of South Dakota

October 24, 1905

Error to Circuit Court, Roberts County.

Charles H. Grant was convicted of failing to keep his saloon closed on Sunday, and he brings error. Affirmed.

E. M Bennett and J. J. Batterton, for plaintiff in error. Philo Hall, Atty. Gen., Frank McNulty, State's Atty. (Aubrey Lawrence, of counsel), for the State.

HANEY J.

The defendant was charged with having been a legally licensed saloon keeper and as such having failed to keep his saloon closed on the first day of the week, commonly called Sunday. He was found guilty as charged in the information, his motion for a new trial was denied, he was fined $300, and brought the conviction here for review by writ of error.

The evidence discloses that the accused was operating a licensed saloon in the city of Sisseton; that he was absent from Sisseton on the day the offense is alleged to have been committed; that one Adler went to the back door of the saloon on the day alleged with a pail, which he handed to some one inside of the door, together with some money, and received the pail with some beer in it, which he carried to the back room of a meat market where he was working; and that other persons were seen to go under the stairway at the rear of the saloon, where Adler went when he received the beer, on the day alleged. By whom the door was opened, or by whom the beer was delivered, does not appear. The law under which the accused was convicted contains these provisions: "All saloons, restaurants, bars in hotels or elsewhere, and all other places except drug stores, where any of the liquors mentioned in this article are sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week commonly called Sunday." Rev. Pol. Code, § 2847. "Any person who shall violate any of the provisions of the two preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as now provided by law for the punishment of misdemeanors." Id. § 2848.

The contention that the conviction cannot be sustained for want of evidence is untenable. There was abundant evidence to justify the conclusion that the saloon was not kept closed on the Sunday in question. If such was the fact, in absence of evidence to the contrary, it gave rise to but one reasonable inference, namely, that the saloon was opened by some one having authority. In other words, the unexplained fact of the saloon being open excluded every reasonable hypothesis inconsistent with the theory of defendant's guilt, and fully satisfied the rule regarding the decree of proof in criminal actions.

The accused having testified that he was absent from Sisseton during the alleged Sunday, his direct examination proceeded as follows: "Q. You may state whether or not you were in your saloon or place of business in this city on that day. A. No, sir; I was not. (Objected to as immaterial. Objection sustained. Plaintiff moved to strike out answer. Motion granted. Defendant excepted.) Q. You may state whether or not you have any knowledge of the saloon being open on that day. (Plaintiff objects to the question as immaterial. Objection sustained. Defendant excepts.) Q. You may state whether or not you gave your bartenders or employés who worked about that saloon any instructions about keeping the saloon open or closed during Sunday. (Plaintiff objects to the question as immaterial. Objection sustained. Defendant excepted.) Q. You may state whether or not the saloon ever was open on Sunday--that Sunday was open--with your knowledge or consent. (Plaintiff objects on the ground that it is immaterial. Objection sustained. Defendant excepts.) Q. You may state whether or not you know of any of your employés having the saloon open on Sunday at any time. (Plaintiff makes the same objection. Objection sustained. Defendant excepts.)" In Michigan, where the law relating to Sunday closing is substantially the same as here, the courts have frequently held that the statute imposes upon a keeper of a bar or saloon the affirmative duty to see that it is closed during certain hours and on holidays, that the neglect of this duty is an offense, and that it is no defense in this...