State v. Irwin
| Citation | 97 N.W. 7,17 S.D. 380 |
| Parties | STATE v. IRWIN. |
| Decision Date | 11 November 1903 |
| Court | South Dakota Supreme Court |
Error to Circuit Court, Brookings County; Julian Bennett, Judge.
G. Lee Irwin was convicted of violation of the liquor law, and brings error. Reversed.
John C Jenkins, for plaintiff in error. Philo Hall, Atty. Gen., and Walter M. Cheever, State's Atty., for the State.
Plaintiff in error was charged in four separate and distinct informations with the offense of unlawfully engaging in the business of selling intoxicating liquors at retail. These four informations were filed at the same time, and are numbered consecutively 11, 12, 13, and 14, and allege successive sales at the same place, but on different days, as follows, September 22d, 23d, 27th, and 24th of the year 1902. Before the trial of this case, under information No. 12, a demurrer was interposed and sustained to information No. 13, which charges that the offense was committed on the 27th day of September, 1902, and judgment was entered acquitting the defendant and exonerating his bondsmen. He had also been tried to a jury under information No. 11, and found not guilty of the offense therein alleged to have been committed on the 22d day of September, 1902. Omitting formal averments, information No. 12, under which the accused was convicted, charges that "G. Lee Irwin late of the said county of Brookings, on the twenty-third day of September, one thousand nine hundred and two, did commit the crime of unlawfully engaging in the business of selling intoxicating liquors at retail without license, which crime was committed as follows, to wit: That said C. Lee Irwin defendant herein, late of the said county of Brookings, on the twenty-third day of September, in the year of our Lord one thousand nine hundred and two, at the city of Brookings, in the county of Brookings, in the state of South Dakota aforesaid, was then and there a person whose business in part consisted in selling intoxicating liquors at retail, and said G. Lee Irwin was then and there unlawfully engaged in and did then and there unlawfully engage in the business of selling at retail brewed and malt intoxicating liquors, to wit, lager beer, at retail, in quantities of less than five gallons at one time, without first having paid the license to said county of Brookings or the treasurer thereof, as required by section 2834 of the Revised Political Code, said G. Lee Irwin not having paid any license to any township, precinct, town, or city within said county of Brookings, and said G. Lee Irwin not having any receipt or notice of such license posted up in the place where such liquors were kept, as required by the statute; said liquor not being proprietary patent medicines." The action of the trial court in overruling the following demurrer to this information is assigned as error: "Said information does not substantially conform to the requirements of law, in that it does not state what license required by section 2834 of the Revised Political Code has not been paid, and it does not charge that the defendant is or is not a traveling salesman who solicits orders by the jug or bottle in quantities of less than five gallons; that the facts set forth in said information do not constitute a public offense."
Section 2834 of the Revised Political Code authorizes the county treasurer to issue a $400 license to persons whose business in whole or in part consists of selling or keeping intoxicating liquors for sale at retail, and a $200 license to retail traveling salesmen who solicit orders by the jug or bottle in lots of less than five gallons. It is needless to allege that the defendant was not a traveling salesman soliciting orders by the jug or bottle in quantities of less than five gallons, when it so clearly appears that he was engaged in the retail business of selling without a license at a place specified, and without having the receipt or notice posted up in his place of business, as required by statute; and the fact that the penalty upon conviction in each instance is identical renders forceless all argument in favor of the demurrer, which was rightfully overruled.
Section 2838 of the Revised Political Code provides that: The informations before us, being all based on section 2838, the recital in one of them that the accused is a registered pharmacist is mere surplusage, and the three are in every material respect precisely alike, except in the statement of the time when the respective offenses were committed. The statute authorizing a registered pharmacist owning and conducting a pharmacy to sell spirituous or vinous liquors for medicinal, mechanical, scientific, and sacramental purposes only, and expressly prohibiting the selling or giving away of any intoxicating liquors whatever to be used as a beverage, is no protection to a registered pharmacist who sells beer at retail as a beverage without a license, and the court was fully justified in denying the offer to show that plaintiff in error belonged to that class.
Relying upon the judgment of acquittal entered on demurrer, and the verdict of not guilty returned by the jury after this trial had commenced, the plea of former acquittal was interposed in bar of the prosecution to support which the proper records of the court and minutes of the trial were offered in evidence and their rejection is assigned as error. Although it was the intention of the Legislature to make proof of a single sale in willful violation of the act sufficient to justify a jury in finding the accused guilty of the offense of engaging in the business unlawfully, further prosecutions may be precluded by putting in evidence all known violations of the statute and relying upon the same for a single conviction. In order to sustain the issue raised by the plea of former acquittal, it was necessary to introduce the record of former proceedings, and show by competent testimony that evidence of the transaction described in the pending information was there received and disposed of by the verdict of not guilty; or that the sale for which he is now being prosecuted is the identical act relied upon in the information to which the demurrer was sustained and upon which a judgment of acquittal was entered. The objection to the form and substance of the information alleging the sale of September 27th being adjudged well taken, no testimony of that transaction was there introduced, and the judgment on demurrer operates merely to acquit the defendant of the offense charged in such information. Under a statute which makes each violation, whether on the same or different days, a separate and complete offense, rendering the perpetrator liable for the penalties and forfeitures therein provided, it cannot be said without further proof that an acquittal or conviction under an information designating a certain day is a bar to all prosecutions for similar violations of the law by the same person at a different time or on other days. When proof of the offense charged in the information under which the accused is on trial might have sustained a conviction on a former trial under a different information, it is only necessary, in order to avoid the plea of former jeopardy, to show by sufficient testimony that a different transaction was solely relied upon in that case, and that no other testimony tending to prove the case on trial was there introduced. Maxwell's Criminal Procedure, 518. Granting that proof of only such sales as were made on September 22d or September 27th would have been sufficient to sustain a verdict of guilty as charged in the information before us, alleging that the accused unlawfully engaged in the business by selling beer on the 23d day of September, such violations of the statute do not constitute offenses necessarily included in this offense,...
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