State v. Schell

• Decision Date: 26 August 1908
• Citation: 22 S.D. 340,117 N.W. 505
• Parties: STATE v. SCHELL.
• Court: South Dakota Supreme Court

22 S.D. 340

117 N.W. 505

STATE

v.SCHELL.

Supreme Court of South Dakota.

Aug. 26, 1908.

Appeal from Circuit Court, Grant County.

William Schell was convicted of keeping a saloon open on Sunday, and he appeals. Affirmed.Howard Babcock, A. W. Campbell, and Thad L. Fuller, for appellant.

S. W. Clark, Atty. Gen., Cloyd D. Sterling, Asst. Atty. Gen., and L. H. Bentley, State's Atty., for the State.

CORSON, J.

This is an appeal by the defendant from a judgment entered upon an order overruling a demurrer to the information filed by the state's attorney against the defendant.

The information, omitting the formal parts, alleges that “on the 16th day of June, 1907, in the county of Grant, state of South Dakota, one William Schell, late of said county of Grant, state of South Dakota, did commit the crime of keeping a saloon and place where spirituous, malt, brewed, fermented, vinous, and intoxicating liquors were sold upon the first day of the week, commonly called Sunday, *** he, the said William Schell, then and there not being a druggist, and said place where said liquors were offered for sale was not a drug store.” To this information the defendant demurred upon the following grounds: (1) That the facts stated therein do not constitute a public offense. (2) That it does not substantially conform to the requirements of the Code, in that it is indefinite and uncertain, and does not state facts in such a manner as to enable a person of common understanding to know what is intended. The demurrer was overruled by the court, to which ruling the defendant duly excepted. Thereafter the defendant entered a plea of not guilty to the charge set forth in the information, and withdrew his plea of not guilty and elected to stand upon the demurrer. Thereupon the court entered judgment that the defendant pay a fine of $50 and costs of prosecution, and, in default of the payment of the said fine, that the defendant be imprisoned in the county jail, in the county of Grant, *** for a period of 25 days, and that he stand committed until the sentence be complied with.

It is contended by the defendant that the information is insufficient, and that the demurrer thereto should have been sustained, for the reason that there is not a sufficient description in the information of the offense to enable the defendant to prepare for his trial of the same, in that there is not alleged therein the name of any person who was present on the Sunday in which the saloon was kept open or any other allegation therein fixing definitely the time when the offense was committed which would enable the defendant to meet the charge alleged against him, and counsel call our attention to section 225 of the Revised Code of Criminal Procedure, which reads as follows: “The...