4 S.D. 548 | S.D. | 1894
The plaintiff in error was indicted, tried, and convicted in the circuit court of Beadle county of the crime of selling intoxicating liquors as a beverage. Omitting the formal parts, the indictment is as follows: ‘‘That Frank Bur-chard, late of said county, yeoman, on the first day of March, in the year of our Lord one thousand eight hundred and ninety-three, at the county of Beadle, and State of South Dakota, with force of arms then and there did wilfully, wrongfully and unlawfully, sell intoxicating liquors, to be drank as a beverage, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of South Dakota.” On the trial, a witness having been sworn on the part of the state, the counsel for the plaintiff in error objected to the introduction of any evidence under the indictment, upon “the ground that the facts stated in the same do not constitute a public offense, and upon the further ground that the indictment is indefinite and uncertain, and does not state facts that will enable a person of common understanding to know what is intended.” The court overruled the objection, to which ruling exception was duly taken. The case was then tried, and a verdict rendered for the state, upon which the accused was sentenced. At the proper time a motion in arrest of judgment was
The learned counsel for the plaintiff in error contends that the indictment is insufficient, under the constitution and laws of this state, in that the offense charged is not stated with such a degree of certainty as to enable a person of common understanding to know what is intended, and to enable the accused to properly prepare for his defense. In this contention, we are of the opinion, the counsel is correct. It will be noticed by an examination of the indictment that the accused is .charged with the offense of selling intoxicating liquors on the first day of March, 1893. The only statement tending to identify the offense is the time. Time is immaterial, and the proof of a sale at any time within the period of the statute of limitations would be sufficient; so that, in effect, the indictment only charges that the accused sold intoxicating liquors as a beverage within the county of Beadle, at some time within three years prior to the finding of the indictment. Can such an indictment be sustained under the laws and constitution of this state? Section 7, Art. 6, of the state constitution pro vides that “in all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation against him; to have a copy thereof.” And Section 7241, Comp. Laws, provides that “the indictment must contain * * * a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” Under these provisions of the law and constitution we are of the opinion that the offense must be set forth with sufficient certainty, not only to enable a person of common undei-standing to know what is intended, but with sufficient certainty to enable the accused .to prepare his defense in advance of the trial, and to enable the trial court to know that the accused is being tried upon ike identical charge passed upon by the grand jury when finding the indictment. Tested by these requirements, the indictment
We shall not attempt to review the case holding a contrary doctrine, but will call attention to two of them, one from Vermont and one from Kansas, for the purpose of showing that the courts of those states recognize the importance of .the observance of the constitutional requirement that we have sug gested. In State v. Rowe, 43 Vt. 265, the court says: “It has been ruled in this state that in this class of cases the accused is entitled to a specification of the offenses charged in this general form of complaint. It would seem that this ruling was made with the view of satisfying the provision of the tenth article of the bill of rights of our state constitution, which gives the accused, in all prosecutions for criminal offenses, a right ‘to demade the cause and nature of his accusation. ’ ” In that state the legislature has provided a form of complaint quite general in its character, and therefore the courts of that state require the states attorney to give the accused a specification of the offense charged, in order to comply with the constitutional requirement. In Kansas it would seem that certain prosecutions in the district courts of that state in this class of cases are by information filed by the state’s attorney, with which is filed the statement of the witnesses upon which the information is based. In the case of the State v. Whisner 35 Kan. 271, 10 Pac. 852, the court in passing upon the constitutional question presented in that case, says: “In this case, however, the defendant has no