25 S.D. 337 | S.D. | 1910
The, defendant was .tried in- the circuit court upon an information charging him with the crime of selling intoxicating liquors at retail without securing a license so to do as required by the statute. Upon such trial the defendant • was convicted, and, he having moved for a new trial and the same -being denied, he has appealed to this court from judgment of conviction and the -order denying a new trial.
The only issue -of fact upon -the -trial seems to have been as to whether or n-ot -the defendant bad paid the license fee, and had received from the county treasurer the proper permit and receipt authorizing him to sell liquor from January i, 1907, to June 30, 1907, it being conceded by the defendant that he was maintaining
This trial was had in- the year 1909. The state called as a witness -the then deputy treasurer, who -testified -that she had been--such deputy treasurer for quite a number of years, bu-t -admitted that she was not in such -office during the period from July 1, 1906, t-o June 30, 1907. Ov-er the objections interposed, she was allowed to testify as -to -the custom -in- said office pertaining to the records kept concerning the payment of license fees, 'she admitting, -however, s-h-e had no- knowledge of -the custom while she was not
The evidence of the two witnesses above referred to, and of the said exhibits, was practically the entire evidence of the state sustaining the claim that the appellant did not have a license at the time of the alleged sale, and the said errors of the court in admitting such evidence were .clearly prejudicial. The statute of this state, in section 875, Rev. Pol. Code, directing the treasurer to keep accounts of all moneys received, appears to be the only record required by law to be kept in the treasurer’s office concerning the payment of license money; while the only record to be filed in the auditor’s office is .the monthly report of-the treasurer provided for by section 2842, Rev. Pol. Code, being one of the sections of said intoxicating liquor law.
The judgment of the trial court and the order denying a new trial are reversed.