State v. Reyelts

Beck, J. I. The indictment charges sales made on divers days between the first day of January, 1884, and the finding of the indictment. The court instructed the-jury that a single unlawful sale, if found by them, would warrant conviction on the indictment. II. Subsequent to January 1, 1884, and before the day of the finding of the indictment, the time within which the crime in the indictment is laid, the statutes relating to the sales of intoxicating liquors were twice amended. The first amendment, taking effect July 4, 1884, provides for injunctions to restrain the manufacture and sale of intoxicating liquors, and that one convicted should not be released under the statute for the release of poor convicts from imprisonment. The second, taking effect April 8, 1886, increases the penalties for maintaining nuisances by keeping places for the unlawful sale of intoxicating liquors. There is a saving clause in each amendment to the effect that acts done and penalties incurred shall not be affected by the amendment, but shall be prosecuted and enforced under the prior statutes. III. It is insisted that the indictment is bad, as it does not allege under which statute the defendant is charged, and therefore there can be no conviction. But it cannot be doubted that the indictment sufficiently charges a nuisance, which was, under all the statutes referred to, alike an indictable offense. The amendments only relate to penalties and punishments, and proceedings to suppress the sale of intoxicating liquors unlawfully made. These matters need not be averred or referred to in an indictment. The court simply looks at an indictment to discover if a crime be sufficiently charged. If it be, matters pertaining to punishment and proceedings to suppress the crime are for after-consideration. The indictment was, therefore, rightly held good by the district court. IV. The defendant being properly put upon his trial on the indictment, his conviction is lawful if the evidence sufficiently shows that he is guilty of the [501] crime, charged as being committed before the amendatory act last above referred to took effect. Upon this question there can be no doubt. The testimony clearly shows sales of intoxicating liquors after the first day of January, 1884, and before the eighth of April, 1886, when the amendatory statute, took effect. He was lawfully tried and convicted upon the indictment, and lawfully sentenced under the statute as it stood prior to the last amendment referred to in this opinion. Y. The district court rightly directed the jury that a single sale would warrant a conviction for the nuisance. The keeping of intoxicating liquors, with the intent to sell them contrary to law, is the act of defendant creating the nuisance. One sale will disclose the unlawful intent as well as the keeping. Hence upon one unlawful sale a conviction may be had for nuisance. This we understand is the recognized rule in this state. The conclusions we announce as applicable to the facts of this case are surely correct. The evidence-shows, without dispute, that, during the whole time alleged in the indictment as the period in which the offense was committed, defendant maintained a saloon in which he kept intoxicating liquors, with the intent to sell them in violation of law. This case is readily distinguished; upon its facts, from Com. v. Maloney, 112 Mass. 283. These considerations dispose of all questions in the case. The judgment of the- district court is Aeeiemed.