State v. Arbes

CANTY, J. Defendant was indicted for the crime of selling intoxicating liquor without a license, was convicted and sentenced, and appeals from the judgment. 1. The indictment was found at the October, 1896, term of court. The defendant was then arraigned, and pleaded not guilty, and the case was by consent continued to the next term, at which, on April 28, 1897, the case was called for trial. Defendant then, and before the jury was impaneled, asked leave to withdraw his plea of not guilty for the purpose -of moving to quash the indictment, for the reason that two of the grand jurors who. returned the same were aliens, neither of whom had ever declared his intention to become a citizen of the United States. These facts appear by affidavits then presented to the court. Leave to withdraw the plea was denied, and this is assigned as error. The granting or denying such leave was in the discretion of the court, and clearly it has not abused its discretion. 2. The charging part of the indictment is as follows: “The said Joseph Arbes on the 31st day of August, A. D. 1896, at the township of Claremont, in the county of Dodge and state of Minnesota, did then and there willfully, wrongfully, and unlawfully sell to one Edward Loader a less quantity of intoxicating liquor than five gallons, to wit, one gill thereof; said Joseph Arbes not having then and there authority or license to sell intoxicating liquor in a less quantity than five gallons, and not dispensing said intoxicating liquor upon the written prescription of a physician.” It appeared on the trial that the intoxicating liquor in question was sold by defendant at his drug store in the village of Claremont, which is within the township of Claremont. . It was admitted by both parties on the trial that the village of Claremont is incorporated, and that “at the general village election in 1896, prior to the time this crime is charged, the citizens of that village voted upon the question of license or no license, and they voted no license.” On this admission defendant objected to the sufficiency of the indictment on the ground, as we understand it, that, as the crime [466] was committed in the village of Claremont, an indictment under section 1993, as modified by section 2029, G. S. 1894, will not lie. 3. The village of Claremont was incorporated by chapter 9, Sp. Laws 1878. Section 16 of this act, as originally passed, placed the sale of intoxicating liquors within the village “under the exclusive control of the common council,” subject to the local option provisions contained in that section. But the section was amended by section 3, c. 58, Sp: Laws 1881, by authorizing the indictment and prosecution in the district court, “under the provisions of chapter 16 of the General Statutes of this state and the amendments thereof heretofore or hereinafter made,” of any person who shall sell or dispose of any intoxicating liquor in the village, without license. Since this amendment State v. Hanley, 25 Minn. 429, cited by appellant, is no authority for holding that the general laws of the state do not apply to a case of selling intoxicating liquors in this village without license. Again, appellant was sentenced under section 4, c. 6, Laws 1887 (said section 2029), which provides a penalty for selling or disposing of “intoxicating liquor without first having obtained a license therefor agreeably to the laws of this state”; and section 5 (section 2030) provides that The act shall be applicable to all cities and villages, whether organized “under general or special law, * * * whether or not said municipal corporations have the right by general or special charter or general or special laws to grant licenses- for the sale of intoxicating liquors or to regulate said sale through or by any council or officer of the same, anything in the charter of any municipal corporation in this state to the contrary, notwithstanding.” Then, clearly, appellant was properly prosecuted under said section 1993, as modified by said section 2029, unless this rule is changed by chapter 259, Laws 1895. But that question has been disposed of adversely to appellant by the decision in State v. Holt, 69 Minn. 423, 72 N. W. 700, and we adhere to that decision. This disposes of all the questions raised. Judgment affirmed.