Smith v. State, 32 Neb. 105

32 Neb. 105 | Neb. | 1891

Norval, J.

On the 6th day of May, 1889, the county attorney filed in the district court of Lancaster county an information charging “ that Moses Smith and "W. Keefe, late of the county aforesaid, on the 1st day of February, A. D. 1889, in the county of Lancaster and the state of Nebraska aforesaid, did unlawfully sell, give away, and vend spirituous, vinous, and intoxicating liquors to Orin Snyder, Frank Martin, and P. H. Cooper, and to other persons to the county attorney unknown, without having first complied with the provisions of the Compiled Statutes of the state of Nebraska, and without having first taken out a license to sell, give away, and vend spirituous, vinous, and intoxicating liquors, the said above sales of spirituous, vinous, and intgxicating liquors by said Moses Smith and W. Keefe, as aforesaid, being without authority and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.”

The. defendants moved the court to quash the information, for the following reasons: ,

1. The information is not direct and certain as regards the particular circumstances of the offense charged.

2. The offense charged is too uncertain and indefinite to plead thereto.

3. There is a misjoinder of parties defendants.

4. ¿The offense charged is not indictable or triable upon information in the district court.

5. The information does not show that the defendants had a preliminary examination, or waived their right thereto, before a magistrate or officer, or that they were fugitives from justice.

6. The information does not set out the names of all the persons to whom the liquor is alleged to have been sold.

7. The information charges more than one offense.

The motion was overruled, and the defendants excepted. The defendants were convicted and each adjudged to pay a fine of $100.

The motion to quash the information should have been sustained. The information is too indefinite and uncertain. It contains but one count, and charges that the defendant sold and gave away spirituous, vinous, and intoxicating liquors. It was held in State v. Pischel, 16 Neb., 490, that the act of selling any of the liquors named in section 11 of chapter 50 of the Coni piled Statutes, as well as the act of giving- away any of them without a license so to do, is a crime. We adhere to the rule therein announced. This case is not distinguishable from State v. Pischel.

As the judgment must be reversed for the error pointed out, it will not be necessary to notice the other assignments of errors.

The judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.