1 Dakota 5 | Supreme Court Of The Territory Of Dakota | 1867
The statute upon which the indictment in this case was drawn, is as follows: “ Every person, except an Indian in the Indian country, who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent,” etc., “ shall be punishable,” etc. 4 U. S. Stat, at Large, 564; vide also Stat. of June 30, 1834, § 70 and the 13 U. S. Stat. at Large, 29.
I. Is the offense a felony? If so, the judgment of the court below ought to have been arrested, because the act of selling should have been charged in the indictment to have been done feloniously.
The term felony appears to have been long used to signify the degree or class of crime committed, rather than the final consequence of its commission. In cases where the statute declares that the offender shall be deemed to have feloniously committed the act, it makes the offense a felony. The statute under which this prosecution is commenced does not use this phrase.
Offenses under the 21st section of the Postoffice Act of the United States; of 1825, for detaining, embezzling, stealing letters or remittances, (wherein the punishment is much -more severe than in the case at bar,) are not felonies. See opinion of the Supreme Court in the case of the United States v. Lancaster.
Originally the word felony had a meaning well defined, bu t it has become vague and undefined, being controlled entirely by the statutes of different states. Acts o'f parliameht and
II. For that the indictment contained two counts, and the jury returned a general verdict of guilty, the defendant below claimed that judgment should be arrested and he have a new trial. There is no principle in law better settled than that when an indictment contains more than one count, and one of them is good, and a general verdict has been rendered, the court will not arrest the judgment, but will proceed to sentence the defendant on a good count. American Crim. Law, 422, and cases there cited; 12 Vermont, State v. Davidson, 300. In the 22 Vermont, State v. Bugbee, 32, in a prosecution for selling spirituous liquor without a license, analagous to this, wherein there were more than one count and some of them bad, the court say: “The court in such case do not arrest the sentence, but proceed to sentence ■ on the good counts alone.” There is, however, no pretense in this case but that both counts were good, saving the question herein decided as to the word felony, and it is, therefore, safe to conclude that the court committed no error in not arresting the judgment for this reason.
III. Was• an Indian a competent witness in this case? No authorities have been presented to the court on either side in this regard, and, therefore, the argument on the side of the prosecution upon this point, has taken the ground that no distinction should be made in this Territory so far as color or race is concerned, and vice versa on the other. It seems to us that there should not be any distinction made so far as color or race is concerned, and it would indeed be very unwholesome for us, in this age of constitutional reform, when we are endeavoring to establish principles in consonance with the intelligence of the time in which we live to consider ourselves obliged in rigore juris to arrive at any other conclusion. Every person should have equal rights under the law. But referring to the 13 U. S. Statutes at Large, 351 and 533, and
IV. The pleader having used, in the indictment, the words, “to-wit: one pint of whisky,” was the prosecution bound to prove it to be the article named ? The statute first quoted is, any person who shall give or sell to any Indian * * * “ any spirituous liquors or wine,” shall be liable. Must it be proved as alleged ? Does it come within the well Jcnown rule of being descriptive of the offense, and under the class that must be proved ?
G-enerally, every allegation that is essential, in whatever form it may be stated, must be proved. There is, however, a middle class ,of circumstances not essential in their nature, which may become so by being inseparably connected with the material allegations. These must be proved as they are laid unless they are stated under a videlicet; the office of which is to mark that the party does not undertake to prove the precise circumstances alleged; and in such cases he is ordinarily not holden to prove them. A videlicet will not avoid a variance, or dispense with exact proof in an allegation of material matter. The allegations of time, place, quantity,
In cases where there are two words or phrases, as in this case — “spirituous liquor” and “whisky” — the broader includes the latter.
The statute does not use the word “ whisky,” but whisky is spirituous liquor; proof, then, of the giving or selling of “ spirituous liquor,” the word being controlled by a videlicet, whatever the allegation in the indictment might be — whether rum, gin, brandy or whisky, or any other thing which is spirituous liquor, the allegation would be sustained and the proof should be regarded as competent to sustain such charge in the indictment. 1 Whar. Crim. Law, 622; and cases there cited.
Nov errors appearing in the record, the judgment of the court below is
Aebtbmbd.
5 Wheat., 434; United States v. Mills, 7 Peters, 430.