State v. Waletich

• Citation: 213 N.W. 21,51 S.D. 209
• Decision Date: 02 April 1927
• Docket Number: 6161.
• Parties: STATE v. WALETICH.
• Court: Supreme Court of South Dakota

213 N.W. 21

51 S.D. 209

STATE v. WALETICH.

No. 6161.

Supreme Court of South Dakota

April 2, 1927

Appeal from Circuit Court, Roberts County; J. J. Batterton, Judge.

George A. Waletich, Jr., was convicted of transportation of intoxicating liquor, and he appeals. Reversed and remanded.

Sherwood and Polley, JJ., dissenting.

Babcock & Babcock, of Sisseton, for appellant.

Buell F. Jones, Atty. Gen., and Bernard A. Brown, Asst. Atty. Gen for the State.

GATES J.

The charge in this case is the transportation of intoxicating liquor. The information charged the transportation as having been-

"from a point in the public highway known as First Avenue East, in the city of Sisseton, in the county of Roberts, and state of South Dakota, opposite the Powell Hospital within said city, and thence south to a point in said public highway, opposite lot 8 of block 42, in the city of Sisseton, in the county and state aforesaid."

The distance between these points was about 150 feet. It is urged that this was not a transportation, within the meaning of section 10303, Rev. Code 1919, but we think it clearly was. Novotny v. State, 182 Wis. 304, 196 N.W. 232; Melcher v. State, 109 Neb. 865, 192 N.W. 502; Brock v. State, 96 Tex. Cr. R. 6, 255 S.W. 751; Jordan v. State, 6 Okl. Cr. 384, 118 P. 813.

While the car was moving slowly, the officer saw defendant remove a bottle from the rear seat to the front of the car. The officer crossed the street, when defendant's car stopped at the latter place, and got on the running board; defendant broke a quart bottle containing a clear liquid upon the side of the car; then he broke another smaller bottle, containing a brownish liquid; there was a scuffle; defendant stepped on the gas, and the car went about 50 feet before the officer had the defendant under control. The officer testified that from the broken bottles he smelled moonshine alcohol fumes. At the justice's office to which defendant and the car were taken, the state's attorney used his handkerchief to sop up some of the liquid remaining on the running board of the car and invited bystanders to smell it. The justice testified that he smelled of the handkerchief, and that "it had a alcohol fume to it." He was the only witness called by the state to testify concerning the smell of the handkerchief. On the other hand, one Dale, a business man of Sisseton, testified that he could not detect any smell of liquor, and that it smelled like turpentine.

Defendant was convicted, and he appeals from the judgment and an order denying new trial.

Many assignments of error are argued; but the one above referred to in reference to transportation, another with reference to an instruction to the jury, and another with reference to misconduct by the state's attorney, are the only assignments that we think merit reference in this opinion. The court charged the jury as follows:

"The court instructs the jury that the laws of this state especially direct that all of the provisions of the intoxicating liquor laws of this state shall be liberally construed for the enforcement thereof, and that no shift device, art, or contrivance whatever, which is used or practiced to evade the law, if you find that any such were used or practiced for such purpose by the defendant, will not avail or be of any benefit to him, if you find that there was substantial violation of the law by him of the charge made against him in the information."

This instruction was evidently taken from the provisions of sections 10235 and 10299, Rev. Code 1919. In so far as it was given under section 10299, it seems to us it was inappropriate. The charge here was unlawful transportation-not any offense arising under section 10299. In so far as it was given under section 10235, it seems to us that the instruction was clearly erroneous. That section is one of interpretation of...