State v. Valentine
| Decision Date | 22 May 1895 |
| Citation | 7 S.D. 98,63 N.W. 541 |
| Parties | STATE v. VALENTINE. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where, for the purpose of proving the charge in an indictment, charging the defendant with committing the offense of selling intoxicating liquors contrary to the statute, evidence is introduced tending to prove the commission of two or more separate and distinct offenses, it is the duty of the court, before the defendant is put upon his defense, if requested so to do, to require the prosecution to elect upon which transaction the state will rely for a conviction.
Error to circuit court, Minnehaha county; Frank R. Aikens, Judge.
Bird Valentine was convicted of selling intoxicating liquors, and brings error. Reversed.Joe Kirby and D. E. Powers, for plaintiff in error. Coe I. Crawford, Atty. Gen., and D. R. Bailey, State's Atty., for the State.
The plaintiff in error was indicted, tried, and convicted, in the circuit court of Minnehaha county, of the crime of selling intoxicating liquors as a beverage, in violation of the provisions of the prohibitory liquor law of this state. When the case was called for trial in the court below, the plaintiff in error, by his counsel, objected to the introduction of any evidence under the indictment, upon the ground that the facts stated did not constitute a public offense. In State v. Burchard (S. D.) 57 N. W. 491, this court held that an indictment substantially identical in form with the one now before us was insufficient, but the objection taken to the introduction of the evidence in that case was not only upon the ground that the indictment did not state facts, etc., but upon the further ground that the indictment was indefinite, etc., and it was upon the latter ground that we held the indictment insufficient. In this case, however, there are errors upon which the judgment of the court below must be reversed, and we will not, therefore, stop to consider further the objections to the indictment.
On the trial, Palmer, a witness called on the part of the state, testified that he bought whisky and beer of the defendant two or three times in January, 1893. Munn, a witness on behalf of the state, being then called, testified, over the objections of the plaintiff in error, that he bought whisky and beer of the defendant in March, 1893. Thereupon the counsel for the plaintiff in error moved the court to compel the state to elect upon which sale it would rely, which motion was overruled, and the plaintiff in error, by his counsel, excepted. The two witnesses above being the only witnesses on the part of the state, the question is fairly presented as to whether or not the state should have been required to elect upon which sale it would rely for conviction. The decisions are irreconcilably in conflict upon this question, and a review of them would be of no practical benefit. After mature consideration of the question, we are inclined to follow the line of decisions that hold that in such a case the state must elect. This seems to be in harmony with the...
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