State v. Julius

HANEY, J. The defendant, having been -convicted of violating the statute relating to the selling of intoxicating liquors by a registered pharmacist, removed the record of such conviction to this court for review by an appeal from the judgment of the circuit court imposing a fine of $200, and from its order denying his application for a new trial. [1] Section 2860 of the Revised Political Code, as amended, has these provisions: “It shall be lawful for any registered pharmacist owning -and conducting a pharmacy, whose certificate of registeration is in - force, to sell spirtuous or vinous liquors for medicinal, mechanical, scientific and sacramental -purposes only. And it shall be unlawful for any registered pharmacist to sell, or give away -any intoxicating liquors whatever to be used as a beverage or drank upon the premises or in a room or place adjoining the premises. * * * Any registered pharmacist who shall sell or in any manner dispose of said intoxicating liquors for any other purpose than authorized in this section or allow intoxicating, brewed or fremented liquors to- be drank upon' the premises or in an)<- room or place adjoining these premises shall be, upon conviction thereof, fined not less than one hundred dollars nor more than three hundred dollars.” Laws 1907, c. 176. Whether this section prescribes more than one offense need not be considered; the information not having been attacked on the ground that it charges more than one offense. Whatever may be the full scope of the amended statute, it clearly forbids the selling and giving of intoxicating liquors to be drank as a beverage anywhere, 'and the selling and giving of such liquors to be drank on the premises, as a beverage or -otherwise.. Therefore it was a -crime -at the time alleged in the information for a registered pharmacist to furnish any one with intoxicating liquors to be drank upon the pharmacist’s premises. The -allegations of [647] the information are, in substance, that the defendant, then and there a registered pharmacist, at the town of Albee, in Grant county, on September 13, 1911, did sell and dispose of intoxicating liquors to “Paul L. Seim and others,” to be drank upon the defendant’s premises. These 'facts certainly constitute the offense charged, provided the allegation relating to the persons receiving the liquor is sufficient. [2] If the pleader intended to allege a sale to Seim alone, he should have omitted the words “and others.” If he intended to allege a joint sale to Seim and others; he might better have named the others, if known, or, if not known, have used the words, “and certain other persons whose names are to the informant unknown.” In this class of cases the information should state to whom the liquor was furnished. State v. Burchard, 4 S. D. 548, 57 N. W. 491. An information should be direct and certain as to the particular circumstances of the offense charged when they are necessary to constitute a complete offense. Rev. Code Crim. Proc. § 222. [3] Under an information charging an illegal sale of intoxicating liquors to several persons jointly; the defendant cannot be convicted of an illegal sale to but one of the persons named. State v. Williams, 20 S. D. 492, 107 N. W. 830. TÍie information in the case at bar cannot be construed as alleging a sale or gift to Seim alone because it expressly states that the liquor was furnished to “Seim and others.” Clearly it states a joint sale to more than one person. Whether it should have been more direct and certain as to all the persons connected with the joint sale is a question not raised by the defendant’s demurrer or his objection to the introduction of any evidence. To raise that question, he should have demurred as in State v. Burchard, supra, on the ground that the information does not substantially conform to the requirements of the Code of Criminal Procedure as to certainty regarding the particular circumstances of the offense charged. Rev. Code Crim. Proc. §§ 222, 272, subsec. 2. It follows that the larned circuit court did not -err in overruling defendant’s demurrer and objection to [648] any evidence on the ground that the facts stated in the information did not constitute a public offense. [4] Though there is some conflict as to whether it occurred on September 13th or 14th all the evidence tending- to prove a sale relates to one transaction, concerning which Seim, called as a witness for the state, testified: “It was in the evening between 9 and 10 after the saloon had closed. Mr. Arthur' Orman and Carl Redman were there at that time. The defendant was there. The three of us entered the front door of the store at the' same time. After entering, we went through the -store to the room back of the prescription case. The defendant came in with us. The first thing- we done was taking out a bottle of beer and drank it, and another was bought, and that was drank. Mr. Redman paid for one bottle I guess 25 cents. He paid the defendant, Mr. Julius. He took the money. Mr. Orman -paid for the other bottle. After it was paid for, we drank it. We poured it into glasses. I drank a portion of it, and they -drank their share. I know what beer is. This was an intoxicating liquor that we drank. Julius did not treat us to liquor at that time. We stayed in the room about half an hour.” Arthur Orman, a witness for the state, having sworn he was present at the time alluded to- by Seita, was asked, on direct examination, “Did you drink beer there that time?” and answered, “No.” He further testified on direct examination: “I do not know that Redman drak. I had pop. I do not know what Seim had. It did not have the appearance of beer to me. He had a small bottle about like a pop bottle. It was not a pint bottle. A pop bottle don’t hold a pint. I mean to say that I had a pop bottle. I do not remember what Seim had. .Redman had pop. It was in a bottle, an ordinary pop bottle. I direct examination: “I do not know that Redman drank. I had The appearance of what he had was pop. Seim appeared to be intoxicated. Hie is a fellow that uses liquor to some extent. I take a drink of beer now and then myself. I never saw Redman drink beer.” Carl Redman, the only other witness for the state, testified: “Julius came back and got three bottles when we called for it. He handed out pop. Seim appeared to have pop the same as we [649] .had. The same kind of a bottle; yes, sir. I mean by pop that it is an intoxicating- drink so far as I know. I did not taste any-think they had. The bottles appeared the same. I never drank intoxicating liquors of any kind, and Arthur Orman did not appear to be intoxicated that day.” On cross-examination Redman testified as follows: “I was not intoxicated on the 13th or at the time I was in the store. I had not drank intoxicating liquors before that day. Q. You stated, as I understand you, that this was an intoxicating drink you got. Did you mean to state that it was something- that would intoxicate you that you got there? A. No-, Sir. Q. Did you mean an intoxicating- or nonintoxicating? A. nonintoxicating. Q. You know what pop is? A. Yes, sir. Q. You know what beer is? A. I have tasted beer. Q. This was pop you got? A. Yes, sir. Q. It was not beer? A. No, sir. Q. And Seim drank the same as you and Orman? A. His bottle appeared to be the same.” The defendant swore that what lie sold was pop. It clearly appears that Seim was intoxicated Three witnesses testified that Seim’s reputation for truth and veracity was bad. While this court might not find, upon the evidence in 'the record on this appeal, that the liquor involved was beer, it cannot disturb the verdict for the reason that Seim swore positively regarding a fact within his own personal knowledge, and the jury were at liberty to believe his testimony notwithstanding it was contradicted by two witnesses for the state, and his credibility was attacked by three apparently disinterested citizens of the community in which he resided. There was no substantial variance, because, as 'heretofore shown, the information alleged a joint sale, and there was evidence tending to prove a joint sale — a single transaction constituting the crime charged. [5] The alleged misconduct of the state’s attorney is not reviewable, for ’the reason that the “statement of facts” in appellant’s brief fails to disclose any timely objections or exceptions thereto. [6] - Moreover, the original record, should it be consulted, would show that the jury were instructed to disregard all state650 merits of the state’s attorney not supported by the evidence, and, in view of all the circumstances, the conduct of the prosecuting officer was not such as to justify the conclusion that the jury would or did disregard the court’s instructions. The judgment of the circuit court is affirmed.