State v. Johnson

• Decision Date: 21 May 1909
• Citation: 121 N.W. 785,23 S.D. 293
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. OLE JOHNSON, Defendant and appellant.
• Court: South Dakota Supreme Court

23 S.D. 293, 121 N.W. 785 (1909)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v OLE JOHNSON,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Deuel County, SD

Hon. George H. Marquis, Judge

Affirmed

Law & Knight

Attorneys for appellant.

S. W. Clark, Atty. Gen.

Cloyd D. Sterling, Asst. Atty. Gen.,

C. A. Meade, State’s Attorney, for the State.

Opinion filed, May 21, 1909.

WHITING, J.

This cause comes before this court upon an appeal from the verdict and judgment of the trial court finding the appellant herein guilty of the crime of willfully and unlawfully allowing one Carl Stoltenburg to visit and remain in a licensed saloon, owned and managed by the appellant; it being charged that the said Stoltenburg was a minor and was not accompanied by his father, mother, or guardian. This appeal is also from an order of the trial court denying the motion for a new trial.

The facts which are shown beyond all dispute by the evidence received are as follows: On the date in question a certain band, of which said Stoltenburg was a member, was engaged to furnish music at a political meeting in the city of Clear Lake in this state. The members of said band all resided in or near a neighboring town. This band had some 16 or 17 members, a large part of whom were boys ranging in age from 14 years up; the said Carl Stoltenburg being 16 years of age. The leader of this band was one Edward Sarver, an adult person. After the political meeting was over with, which meeting, was held in the evening, the band got together and visited a certain saloon, other than the appellant’s, and played several pieces therein, and from there went into the saloon owned and operated by the appellant, Ole Johnson. Johnson was at the time personally in charge of said saloon. It appears that the band, after entering said saloon, formed in a line and played two pieces, after which they were invited to the bar by Johnson and treated. There is some conflict in evidence as to the class of liquors drank, but under the charge preferred here this is immaterial. It took from 10 to 15 minutes for the band to play the pieces played by them in appellant’s saloon, and after this it would appear that the band immediately withdrew from the saloon.

There are numerous assignments of error to be found in the abstract herein, but these can all be considered under certain headings, and are so considered by the appellant in his brief. The appellant claims: That the, evidence does not show that Stoltenburg did in fact “visit in” in the saloon of the defendant; that the evidence does not show that Stoltengurg did in fact “remain in” the saloon of defendant; that the evidence fails to show that Stoltengurg was not “accompanied by his father, mother, or guardian”; that it does show that he was accompanied by his guardian, to wit, the said Sarver, leader of the band; that, assuming that the facts show a violation of the letter of the law, yet they do not show a violation of the spirit of the law. The defendant assigns as error certain rulings of the court pertaining to the admission and rejection of evidence, as well as its refusal to give certain instructions; but, under our view of the four assignments above referred to, it will be unnecessary to consider such other assignments, and we need only to say that we can see no error in the courts rulings therein.

The appellant strenuously contends that a mere temporary call at a saloon for a purpose such as to furnish music therein, such call standing alone and unrepeated, is not within the intent of our statute forbidding a minor to “visit or remain in” a licensed saloon. Appellant cites certain cases from Texas, which apparently support his contention. We do not know what the full statutory law of Texas is in relation to the sale of intoxicating liquors, but it does appear that their statute, instead of reading “visit or remain in,” reads “enter and remain.” In construing a statute the whole of the same should be considered together, so as, if possible, to give to each part thereof such construction as will render the whole law harmonious and consistent, the one part with the other. It was held by this court in the case of State v. Barber, the so-called Hetland case, found in 19 S.D. 1, 101 N.W. 1078, that we have a prohibitory law with local option prohibition. It was also held in State v. Grant, 20 S.D. 164, 105 N.W. 97, that proof that the saloon was open at all on Sunday, without some evidence explaining same, rendered the proprietor thereof guilty under our Sunday closing section of this law. In State v. Schell, 22 S.D. 340, 117 N.W. 505, this court held in relation to keeping saloon open on Sunday that it was absolutely immaterial as to the saloon keeper’s intent in...