State v. Reynolds

• Decision Date: 05 October 1931
• Docket Number: 7021
• Citation: 59 S.D. 53,238 N.W. 142
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. JAMES REYNOLDS, Appellant.
• Court: South Dakota Supreme Court

59 S.D. 53

238 N.W. 142

STATE OF SOUTH DAKOTA, Respondent,

v.

JAMES REYNOLDS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Union County, SD Hon. Herbert B. Rudolph, Judge #7021—Affirmed Tom Kirby, John Lynch, Sioux Falls, SD Attorneys for Appellant. M. Q. Sharpe, Attorney General Frank W. Mitchell, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion Filed Oct 5, 1931

MISER, C.

Appellant was convicted on an information charging him with keeping and storing intoxicating liquor on December 22, 1927, with the intent and purpose of evading the provisions of chapter 281 of the Laws of 1917. He admits that the proof showed his possession of, and that he broke with a hammer, a jug of whisky, then being seized by the officers at the time and place alleged, but he claims that he could not have had it with the intent and purpose of evading chapter 281 of the Laws of 1917 for the reason that, by section 10669, Rev. Code 1919, said chapter 281 had been repealed eight years prior to the commission of the acts charged against the defendant; that the words in the information, “with the intent and purpose of evading the provisions of chapter 281, Laws 1917,” cannot be rejected as surplusage, because, if so rejected, no intent would have been pleaded; also that, inasmuch as the law, with the intent of evading which appellant was charged, had been repealed, he was charged with an act which was not a criminal offense.

Section 10299, Rev. Code 1919, is as follows: “Evasion Punished. The keeping, storing or giving away of intoxicating liquors, or any shift or device whatever to evade the provisions of this article, shall be deemed unlawful within the provisions of this article, and shall be punished as unlawful selling is punished.”

Section 10299, Rev. Code 1919, is identical with section 71 of chapter 281, Laws 1917, excepting that, instead of the word “article” which occurs twice in the Code section, the word “act” is found in the Session Laws.

It is generally held that the revision of a statute by re-enactment of a previous statute operates as a continuance of the former instead of a repeal and new enactment, this even though the revision expressly states that it repeals all prior statutes save those mentioned and excepted. State v. Prouty, 115 Iowa 657, 84 N.W. 670; O’Brien County v. Mahon, 126 Iowa 539, 102 N.W. 446; Pringle v. Canfield, 104 N.W. 223; 36 Cyc. 1085, 25 RCL 935; Golden Valley County v. Lundin, 319; In re Grinnell, 117 Neb. 332, 220 N.W. 583. In Golden Valley Co. v. Lundin, supra, the North Dakota court, after quoting from 25 RCL pages 934, 935, and 1 Lewis’ Sutherland Stat. Const. 238, says: “This court has recognized the correct rule to be as stated by these authorities. In Gull River Lumber Co. v. Lee, 138, 431, this court said: ‘It is a well settled principle of law that where a statute is repealed, and the repealing statute, which goes into effect the moment the former is repealed, contains provisions identical, or practically identical, with those in the statute which is repealed, such provisions are not to be regarded as repealed, but rather as continuing in force without intermission.’”

While it would have been better to have referred to the Prohibitory Law as section 10235 to 10328, Revised Code of 1919, the defendant could not have been misled by the information. The information demurred to could have...