State v. Laymon

• Decision Date: 01 May 1918
• Docket Number: 4214
• Citation: 40 S.D. 381,167 N.W. 402
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. CLARE S. LAYMON, Defendant and appellant.
• Court: South Dakota Supreme Court

40 S.D. 381

167 N.W. 402

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

CLARE S. LAYMON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Kingsbury County, SD Hon. Alva E. Taylor, Judge #4214--Affirmed Hall, Alexander & Purdy Attorneys for Appellant. Clarence C. Caldwell, Attorney General Byron S. Payne, Assistant Attorney General Attorneys for Respondent. Opinion filed May 1, 1918

POLLEY, J.

Defendant, a registered pharmacist conducting a drug store in the town of Hetland, was convicted of selling intoxicating liquor to be used as a beverage, and from a judgment imposing a fine of $200 he appeals.

It is first contended by appellant that the information on which he was tried charges two separate offenses, under the statute, and that therefore said information is bad for duplicity. This contention is based upon the fact that the said information Charges that, at a specified time and place, defendant did "sell" and "give" intoxicating liquor to, the person named in said information, while the statute (section 2860, Pol. Code, as amended by chapter 176, Laws of 1907) under which the information is drawn makes it an offense to "sell" or "give," etc. This contention is so fully answered by what is said by this court in State v. Bradley, 87 N.W. 590, that further discussion of the proposition is wholly unnecessary.

It is next contended by appellant that the information is insufficient to support a conviction. This contention grows out of a confusion of terms used in section 2860, Revised Political Code of 1903, as amended by chapter 176, Laws of 1907. This section, as amended, defines two separate and distinct offenses, and attempts to provide a different penalty for each offense. The first provision, in general terms, makes it unlawful for a registered pharmacist to sell intoxicating liquors to be used as a beverage, without regard to the granting of permits to sell the same, and provides that any pharmacist who sells intoxicating liquor in violation of the provisions of "this section" shall be punished by a fine of not less than $100 nor more than $300, etc. The next provision of said section makes it unlawful for a registered pharmacist to sell intoxicating liquors in any precinct, town, or city that has voted against the issuing of permits to sell intoxicating liquors, except upon a prescription of a licensed resident physician, and provides that any pharmacist who violates the provisions of "this section" shall be punished by a fine of not to exceed $100, or imprisonment, or both, etc. Thus, if read literally, the penalty provided by either provision, of the section applies equally to the offense defined in the other provision. But such an interpretation would, of course, be preposterous. The penalties imposed for the different offenses are radically different. It is very clear that the Legislature meant that the penalty prescribed in the first provision of the statute shall apply to the offense defined in that provision, and that offense only. And the same is true of the penalty prescribed in the second provision. If before the words "this section," in each place where they are used, the words "this provision of" were inserted, the meaning of the Legislature would be clear. Thus, by interpolating into each provision before the words "this section" the phrase "this provision of" so that it would read "this provision of this section," there would be no confusion, and the very evident intent of the Legislature would be dearly expressed. This interpretation harmonizes the various provisions of the said section, and, in our opinion, expresses the intent of the Legislature.

Applying the statute as thus interpreted to this case, we find that the information has been drawn under the first of the above enumerated provisions of the said section. The information contains all the elements of this offense, and it contains no element, not common to both offenses, constituting the offense defined by the second provision of the statute. All the evidence on behalf of the state was aimed at the offense defined by the first provision. The penalty imposed by the court is the penalty prescribed for the first-named offense, and is one that could not be imposed for the other. The case was tried by both the state and the appellant on the theory that appellant was charged with the commission of the offense defined in the first provision of the law. No claim is made by appellant that the information charges the offense defined in the second provision, or that he was misled or unable to prepare his defense, and we are fully satisfied that his rights were in no wise prejudiced.

At the beginning of the trial, certain of the veniremen on the panel were challenged by appellant for actual bias, appellant contending that it clearly appeared from the examination of these veniremen on their voir dire that two of them had fixed opinions relating to the guilt innocence of the appellant and that another was so biased and prejudiced against appellant that he was clearly disqualified to act as a juror in the case. But these challenges were overruled, and, to avoid being tried by jurors whom he considered disqualified to act in the case, appellant was obliged to and did exercise a peremptory challenge upon oath of such veniremen. Appellant contends that the ruling of the trial court in denying his challenges for cause constituted reversible error. If the said veniremen were in fact disqualified because of actual bias, it was error, of course, on the part of the trial court to overrule the said challenges, but it does not necessarily follow that such error is reversible. Each of said veniremen was excused by appellant on peremptory challenge, and the real error, if there was error, consisted in compelling the appellant to exercise his peremptory challenges upon veniremen who should harm been excused for cause. It is not necessary to determine whether the said veniremen were disqualified to act al jurors or not, because, not having served upon the jury, of course the appellant was not...