State v. Williams

• Decision Date: 09 May 1906
• Citation: 107 N.W. 830,20 S.D. 492
• Parties: STATE v. WILLIAMS.
• Court: South Dakota Supreme Court

107 N.W. 830

20 S.D. 492

STATE v. WILLIAMS.

Supreme Court of South Dakota

May 9, 1906

Appeal from Circuit Court, Brookings County.

G. A Williams was convicted of illegally selling intoxicating liquor, and appeals. Reversed.

Olaf Eidem, for plaintiff in error. Philo Hall, Atty. Gen., Aubrey Lawrence, Asst. Atty. Gen., and J. P. Cheever, Acting State's Atty., for the State.

FULLER P. J.

Upon proof confined by the court to unlawful sale of intoxicating liquors in quantity less than five gallons to Herman Vandry plaintiff in error, a registered pharmacist, was tried and convicted under an information sufficient as to time and place, and possessing the requisite degree of certainty to charge the accused with a joint sale to U. Cochrane, John Hogan, Frank Hultz, W. E. Totten, Chas. Replogle, and Herman Vandry and, the question being properly saved for review, we must now determine whether there is a fatal variance between the evidence and the allegations of the information.

In the case of State v. Burchard, 4 S. D. 548, 57 N.W. 491 a judgment convicting the defendant of the crime of selling intoxicating liquors unlawfully was reversed for the sole reason that the purchaser was not named in the indictment, and it has been quite uniformly held by courts entertaining a contrary view that when the person to whom the sale was made is unnecessarily named, the proof must correspond with that allegation. Black on Intoxicating Liquors, 517. Of course there can never be a sale in any traffic without a purchaser, and he is so connected with the vendor of intoxicating liquors that no unlawful sale can be charged in a manner to constitute a public offense without naming him or otherwise identifying the transaction so that the accused may know whether to plead guilty or prepare to defend and, in case of a conviction or acquittal, be able to plead the judgment in bar of another prosecution for the same offense. The view that the name of the purchaser is essential to a sufficient description of the offense is sustained by the great weight of authority, and the elementary rule that the proof must correspond with the pleadings is applicable alike to civil and criminal actions. State v. Shanley (S. D.) 104 N.W. 522. While the accused might have prepared to repel the suggestion that he ever participated in a sale of intoxicating liquors to the six persons named, no opportunity was given him to produce such evidence and all that was offered on the part of the state was testimony tending to prove him guilty of an offense not charged in the information.

In determining the effect of omitting the name of the purchaser Judge Corson, speaking for the court in State v. Burchard, supra, used the following language: "Can such an indictment be sustained under the laws and Constitution of this state? Section 7, art. 6, of the state Constitution, provides that, 'in all criminal prosecutions, the accused shall have the right to demand the nature and cause of the accusation against him; to have a copy thereof.' And section 7241, Comp. Laws 1887, provides that 'the...