195 N.W. 838 | S.D. | 1923
On March 6, 1923, the state’s attorney of Potter county filed an information against the defendant. To1 this information defendant demurred on the following grounds: (1) That it does not substantially conform to the requirements of title 5, Revised Code of 1919;' (2) that the-information does not describe a public offense; (3) that the offense charged is not des-ignated in a manner to enable a person of common'understanding to know what is intended.
Omitting merely formal parts, the information clearly charges that— - .
.“On.the 29th,.day- of October, in the year 1922, in the county of-Potter, in the -State of South Dakota, Matt' Hoven did commit the crime of selling and! furnishing intoxicating liquors, committed as follows’: That at.the said time and place the said M,att Hoven did (theh- and there willfully, knowingly, and unlawfully sell and furnish to another certain intoxicating liquors, commonly known as /moonshine’ or ‘home brew,’ containing alcohol, and capable of being, used as a beverage.”
The word's “the same being a distilled, brewed or fer-' mented liquor” may be rejected as surplusage. The wiords “selling and furnishing” before the words- “intoxicating liquors” refer
Manifestly this -information charges- a violation of section 10244, R. C. 1919, andl therefore charges .the commission of a public offense. The allegation that the offense -was committed in Potter county is sufficiently definite. State v. Humphrey, 42 S. D. 512, 176 N. W. 39; Antonelli v. State, 3 Okl. Cr. 580, 107 Pac. 951.
This offense is charged substantially in the language of the statute. As a general rule, in charging a statutory offense, it is sufficient if the offense is set forth substantially in the language of the statute. Black on Intoxicating Liquors, p. 5x8, § 438; Wharton’s 'Criminal Law, vol. 1, p. 298, note 2.
As to the third ground of this demurrer, it is sufficient to say the objection is without merit.
Defendant strenuously contends that his constitutional rights granted by section 7, art. 6, of our Bill of Rights, have been invaded, in that “the nature and cause of the accusation against him” is not set forth in this information: First, because the offense is not made definite by giving the name of the person to whom the intoxicating liquor was sold; second, if .the name of the person- to whom the sale is made is not given, then by giving some other specific description of the offense -which will clearly designate it from all other offenses.
Defendant does -not claim that the- failure of the information to state the name of the buyer, of - itself, invades his constitutional rights, but such failure coupled with the failure to give in the information some other particular description of the offense, so that the court might limit the testimony strictly to the offense charged, and the defendant need prepare to defend only one specific sale. If the name of the person buying the liquor need not necessarily be -given to preserve defendant’s constitutional rights,it is difficult to see in what other manner the offense -could be more clearly described than it is already in this information, and defendant’s counsel has pointed out no other way.
The clause in our Bill of Rights- (section 7 of .article 6) is substantially the- same as article 6 of the Amendments to the Constitution of the United States, and gives the defendant only the ■
The gist of the offense charged in this information is the sale of intoxicating liquor, and we think this charge is set forth in this information with clearness and all necessary certainty to •apprise defendant of the crime with which he is charged: and enable him to prepare his defense. The great weight of authority is to the effect that the name of the purchaser need not be given in an information charging the sale of intoxicating liquor. State v. Blair and State v. Gravdahl, supra; McNeil v. State, 125 Ark. 47, 187 S. W. 1060; Fletcher v. Commonwealth, 106 Va. 840, 56 S. E. 149, 15 R. C. L. 387; State v. Schweiter, 27 Kan. 499; State v. Davis, 68 W. Va. 184, 69 S. E. 644; Dean v. State, 130 Ark. 322, 197 S. W. 684; State v. Koerner, 103. Wash. 516, 173 Pac. 175; Nelson v. U. S. (C. C.), 30 Fed. 112.
Defendant points out no other particular in which section 103:17, R. C. 1919, is unconstitutional, and none occurs to this 'Court. It is settled law in this state that no law shall be declared unconstitutional unless the invalidity is so plain and palpable as to leave no reasonable doubt. Peterson Oil Co. v. Frary (S. D.), 192 N. W. 366. We hold the provision of section 103117, that the name of the purchaser of intoxicating liquor need not be given in the information, is not repugnant to section 7, art. 6, of our Constitution.
The other authorities cited by appellant were based on an entirely "different statute from our present prohibitory law, and are not applicable to this case.
Wte have carefully examined all the other assignments, and, finding no. error, the judgment of the lower court is affirmed.
Note. — Reported in 195 N. W. 838. See, Headnote (1), American Key-Numbered Digest, Indictment and information, Key-No. 119(2), 31 C. J. Sec. 300; (2) Indictment and information, Key-No. 125(47), 31 C. J. Sec. 334; (3) Indictment and information, Key-No. 80(3), 31 C. J..Sec. 203; Intoxicating liquors, Key-No. 215, 23 Cyc. 223; (4) Indictment and information, Key-No. 110(3), 31 C. J. See. 260, Intoxicating liquors, 23- Cyc. 217; (5) Intoxicating liquors,
On rejection as surplusage of matter which tends to negative offense otherwise stated, see note in 47 L. R.. A. (N. S.) 679.
On; necessity of indictment or information for sale of intoxicating liquors contrary to prohibitory statute or ordinance stating name of purchaser, see note in 23 L. R. A. (N. S.) 582. ■
