State v. Sturgis

• Decision Date: 05 January 1929
• Docket Number: 6737.
• Parties: STATE v. STURGIS.
• Court: South Dakota Supreme Court

222 N.W. 681

54 S.D. 245

STATE v. STURGIS.

No. 6737.

Supreme Court of South Dakota

January 5, 1929

Appeal from Circuit Court, Meade County; James McNenny, Judge.

Milt Sturgis was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Pat Morrison, of Mobridge, and Burton Penfold and Dan McCutchen both of Belle Fourche, for appellant.

Buell F. Jones, of Britton, and Bernard A. Brown, of Sioux City Iowa, for the State.

BROWN J.

Defendant was found guilty of selling intoxicating liquor in Meade county, and from a judgment and an order denying a new trial he appeals.

Charles A. Yeoman testified that he saw defendant in a pool hall in Faith and asked him where he could get some whisky; that defendant directed him to a culvert on a public highway in the county and he went there and in the culvert found a quart bottle full, some of which he and others drank, and they put the rest in a pint bottle. On the way from Faith to Sturgis they were arrested by a deputy sheriff, who took the bottle and examined its contents and testified that in his opinion it was moonshine whisky and intoxicating. Yeoman testified that next day he got three boxes of cigars from defendant gave him a $20 bill, and got back $8 in change. There is nothing in the record showing at what price he purchased the three boxes of cigars, but the Attorney General in his introductory statement of the facts says that the cigars were bought at the price of $2.50 a box. This statement in argument cannot be considered, and it follows that there is no evidence in the record showing that anything was paid for the liquor. But payment of a price is not necessary to constitute a sale. To give away or furnish intoxicating liquor is to sell it (Rev. Code, § 10242), and to tell one who asks for liquor where he can find it, and following up the information, he does find it and take possession, constitutes the transaction a sale. State v. Sullivan, 97 Wash. 639, 166 P. 1123; Winter v. State, 132 Ala. 32, 31 So. 717; Hargrove v. State (Tex. Cr. App.) 76 S.W. 922; Bradley v. State, 1 Ala. App. 214, 55 So. 429.

Defendant denied any connection with the affair, and two witnesses testified that he was not in Faith on the occasion testified to by the state's witness. The credibility of the witnesses was for the jury, and the contention that the evidence is insufficient to justify the verdict cannot be sustained.

The purchasers of the liquor, Yeoman and Anderson, were not accomplices in making the sale, and defendant's contention that the evidence is insufficient because they were not corroborated cannot be sustained. State v. Brand, 124 Minn. 408, 145 N.W. 39; State v. Bachmeyer, 167 Minn. 520, 208 N.W. 995; State v. Wright, 152 Mo.App. 510, 133 S.W. 664; Commonwealth v. Graves, 97 Mass. 114; Harrington v. State, 36 Ala. 236; State v. Dawson, 40 Idaho, 495, 235 P. 326.

In one part of the instructions the court in quoting the statutory definition of intoxicating liquors omitted the words "containing alcohol" in the clause, "and every other liquid mixture or compound," and defendant contends that for this error there must be a reversal. In a succeeding part of the charge, however, the court correctly read the statutory definition, and it is well settled that the instructions must be considered as a whole (State v. Sonnenschein, 37 S.D. 585, 159 N.W. 101; State v. Montgomery, 26 S.D. 539, 128 N.W. 718), and the omission of the words, "containing alcohol," in one part of the instructions, cannot be considered prejudicial error, when in another part the words were included in a definition which was in all respects correct and sufficient. It may be further observed that defendant took no exception to any part of the charge, and therefore is in no position to assign error on the charge as given.

In addition to fine and imprisonment, the judgment included costs in the sum of $107, and defendant contends that this was unauthorized by statute. If it were, it would not render the judgment void, but would only call for the remission of the unlawful part (In re Taylor, 7 S. D. 382, 64 N.W. 253, 45 L. R. A. 136, 58 Am. St. Rep....