State v. Julius
| Decision Date | 01 October 1912 |
| Citation | 137 N.W. 590,29 S.D. 638 |
| Parties | STATE v. JULIUS. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Grant County; Frank McNulty, Judge.
E. D Julius was convicted of violating the liquor law relating to a registered pharmacist, and he appeals. Affirmed.
Thos L. Bouck, of Milbank, for appellant.
Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty Gen., and Thad L. Fuller, State's Atty., of Milbank, for the State.
The defendant, having been convicted of violating the statute relating to the selling of intoxicating liquors by a registered pharmacist, removed the record of such conviction to this court for review by an appeal from the judgment of the circuit court imposing a fine of $200, and from its order denying his application for a new trial.
Section 2860 of the Revised Political Code, as amended, has these provisions: Laws 1907, c. 176. Whether this section prescribes more than one offense need not be considered; the information not having been attacked on the ground that it charges more than one offense. Whatever may be the full scope of the amended statute, it clearly forbids the selling and giving of intoxicating liquors to be drank as a beverage anywhere, and the selling and giving of such liquors to be drank on the premises, as a beverage or otherwise. Therefore it was a crime at the time alleged in the information for a registered pharmacist to furnish any one with intoxicating liquors to be drank upon the pharmacist's premises. The allegations of the information are, in substance, that the defendant, then and there a registered pharmacist, at the town of Albee, in Grant county, on September 13, 1911, did sell and dispose of intoxicating liquors to "Paul L. Seim and others," to be drank upon the defendant's premises. These facts certainly constitute the offense charged, provided the allegation relating to the persons receiving the liquor is sufficient.
If the pleader intended to allege a sale to Seim alone, he should have omitted the words "and others." If he intended to allege a joint sale to Seim and others, he might better have named the others, if known, or, if not known, have used the words, "and certain other persons whose names are to the informant unknown." In this class of cases the information should state to whom the liquor was furnished. State v. Burchard, 4 S. D. 548, 57 N.W. 491. An information should be direct and certain as to the particular circumstances of the offense charged when they are necessary to constitute a complete offense. Rev. Code Crim. Proc. § 222.
Under an information charging an illegal sale of intoxicating liquors to several persons jointly, the defendant cannot be convicted of an illegal sale to but one of the persons named. State v. Williams, 20 S.D. 492, 107 N.W. 830. The information in the case at bar cannot be construed as alleging a sale or gift to Seim alone because it expressly states that the liquor was furnished to "Seim and others." Clearly it states a joint sale to more than one person.
Whether it should have been more direct and certain as to all the persons connected with the joint sale is a question not raised by the defendant's demurrer or his objection to the introduction of any evidence.
To raise that question, he should have demurred as in State v. Burchard, supra, on the ground that the information does not substantially conform to the requirements of the Code of Criminal Procedure as to certainty regarding the particular circumstances of the offense charged. Rev. Code Crim. Proc. §§ 222, 272, subsec. 2. It follows that the learned circuit court did not err in overruling defendant's demurrer and objection to any evidence on the ground that the facts stated in the information did not constitute a public offense.
Though there is some conflict as to whether it occurred on September 13th or 14th all the evidence tending to prove a sale relates to one transaction, concerning which Seim, called as...
To continue reading
Request your trial