State v. Blair

186 N.W. 961 | S.D. | 1922

WHITING, J.

This is an appeal from a judgment and from an order denying a new trial in a criminal action. The information charged that—

“Ed Blair * * * did commit'the crime of selling and giving away intoxicating liquors, * * * committed as follows: That * * * said defendant did * * * furnish and give away intoxicating liquors, same being' * * * sold and given away by him to divers persons. * * *”

Defendant demurred to such information for the reasons:

.“First. That said information does not describe a public offense.

“Second. That said information attempts to charge two offenses.”

As a part of both “First” and “Second,” defendant set forth alleged reasons why, in the one case, the information failed to state a public offense, and, in the other case, attempted to charge two offenses. Under “First,” defendant asserted that it did not state a public offense, because it failed to set forth the name of any person to whom defendant is alleged to have gold the liquor, and to set forth the kind of liquor. Under “Second,” defendant contended that “selling” and “giving away” intoxicating liquors are two separate offenses.

Our Code (section 4771, R. C. 1919) prescribes the several grounds for demurrer to a criminal information or indictment. Among such grounds are:

“2. That it does not substantially conform to the requirements of this title.

“3. That more than one offense is charged.

“4. That it does not describe a public offense.”

[1] Was more than one offense charged? Clearly not. One section of the statutes under which this prosecution was brought, section 10242, R. C. 1919, reads:

“The word ‘sell/ as used in this article, shall be deemed to mean and include the transfer of title for a consideration, or to * * * give away or furnish.”

It follows that it was surplusage to allege the furnishing and giving away, as, under the allegation of selling, proof of both furnishing and giving away was permissible. There was but one offense charged.

[2] Did the information charge a public offense? That it did is too clear for argument. The fact that the information did not name the persons to whom the sale was made does not render the information subject to demurrer, as one not stating a public offense.

[3j Defendant now seeks, under such demurrer, to test the constitutionality of section 10317, R. C. 1919, which provides that “it shall not be necessary to state the name of the person to whom such liquor was sold.” That is a question that could only be raised, if by demurrer, by one based on subdivision 2, section 4771; and, if raised by a demurrer under such subdivision, the fact that it was based upon the contention that section 10317 was unconstitutional should have been presented to the court by the demurrer. There is nothing in the record to show that the defendant, in any manner, suggested to the trial court that he was resting his demurrer on the claim that he now makes, that the information did not give to him that which he was entitled to demand under section 7, art. 6, Const. — “the nature and the cause of the accusation against him.” The demurrer interposed did not present the question now urged, and the trial court did not err in overruling same.

[4] Having failed to property raise, by demurrer, the question of the constitutionality of section 10317, a ground for demurrer which, if it existed, appeared on the face of the information, defendant did, under section 4779, R. C. 1919, waive the right to, in any other manner, raise the question of the constitutionality of such statute. We wish to note that, in the light of facts admitted by defendant on the witness stand, it is absolutely certain that defendant was not prejudiced in the slightest through not having the names of the “divers persons” set forth in the information.

[5] The only other question we feel called upon to consider is one raised by defendant’s motion, made after all the evidence was introduced, asking the court to require the state to elect the particular incident—that is, a particular sale to a specific person—upon which it would rely for a conviction. To understand this motion we must consider what the evidence tended to show. The evidence showed that defendant and some half dozen other men met at a certain place, where they spent some four to six hours, and that, during this time, they partook of and consumed some two quarts of intoxicating liquors. It was the claim of the state, and the jury by its verdict found, that defendant furnished the liquor. This was, as defendant upon the witness stand .admitted, a continuous drinking bout, in which all partook, and during which each drank several times. The state maintained, and the trial court held, as we think correctly, that this whole affair could and should be treated as one transaction. Defendant could not have been prejudiced by such ruling, even if erroneous, as he admitted that all partook of the liquor and that it was intoxicating. The only issue of fact for the jury was as to who furnished the liquor, not' as to who drank it.

The judgment- and order appealed' from are affirmed.

ANDERSON, J., not sitting.