17 S.D. 380 | S.D. | 1903
Lead Opinion
Plaintiff in error was charged in four separate and distinct informations with the offense of unlawfully engaging in the business of selling intoxicating liquors at retail. These four informations were filed at the same time, and are numbered consecutively 11, 12, 13, and 14, and allege successive sales at the same place, but on different days, as follows, September 22d, 23d, 27th, and 24th of the year 1902. Before the trial of this case, under information No. 12, a demurrer was interposed and sustained to information No. 13,
Section 2834 of. the Revised Political Code, authorizes the county treasurer to issue a $400 license to persons^whose business in whole or in part consists of selling or keeping intoxicating liquors for Sale at retail, and a $200 license to retail traveling salesmen who solicit orders by the jug or bottle .in lots of less than five gallons. It is needless to allege that the defendant was not a traveling salesman soliciting orders by the jug or bottle in quantities of less than five gallons, when it so clearly appears that he¡was engaged in the retail business of selling without a license at a 'place specified, and .without having the receipt or notice posted up in his place of business, as required by statute; and the fact that the penalty upon conviction in each instance is identical renders forceless all argument in favor of the demurrer, which was rightfully overruled.
Section 2838 of the Revised Political Code provides that: “If any person or persons shall engage or be engaged in any business requiring the payment of license under section. 2834 without having paid in full the license required by this article, and without having the receipt and notice for such license posted up as required by this article, or without having made,. executed and delivered the bond required by this article, or
Relying upon the judgment of acquittal entered on demurrer and the verdict of not guilty returned by the jury after this trial had commenced, the plea of former acquittal was interposed in bar of the prosecution to support which the proper records of the court and minutes of the trial were offered in evidence, and their rejection is assigned as error. Although it was, the intention of the Legislature to make proof of a
In disposing of the question which arose in a prosecution for the violation of a statute similar to ours, the Michigan court says: “He must prove that the former acquittal or conviction is for the same offense now complained of. * * * It -is true that in a prosecution charging the offense as having been committed on a particular day the proof need not be limited to that precise day, and the prior prosecution would bar a prosecution for any offense which came within the proof offered by the prosecution on the prior trial; but beyond this the rule could not be extended.” People v. Gault (Mich.) 62 N. W. 724. Judge Brewer says: “A plea of guilty is an admission of guilt as to only one offense, and not as to two or more; and we apprehend the rule to be that where, prima facie, the two complaints charge distinct offenses, a conviction under one is no bar to a prosecution under the other without proof aliunde that the same transaction is complained of in the two actions. * * * We note the expressions referred to by counsel in many authorities that
This court has gone no further than to hold that the prosecutioh must'be for the same offense, to maintain which the same testimony is relied upon, in order to constitute a complete bar to .another information. State v. Adams, 11 S.D. 431, 78 N. W. 353. Upon being denied the right to place before the. jury in an. orderly manner the record of all prior proceedings under the two informations which had been disposed of, counsel for the accused offered to prove;, in accordance with his theory of thé defense, that plaintiff in error had been tried and found not guilty of the offense with which he now stands charged; but the court denied the offer, and rejected all testimony submitted in support of the plea of former acquittal, for the obvious reason that counsel had admitted that .in the information under
After the state had shown by the positive and undisputed testimony of different witnesses that on the 23d day of September, 1902, plaintiff in error sold beer to a number of persons at his place Of business on Main street, in the city of Brookings, it was error to allow the prosecution to resort to leading and suggestive questions in order to prove subsequent alleged violations of the statute, including the sale of September 27th, for which the accused had been previously acquitted.
For the reasons stated, the judgment of the court below is reversed, and a new trial granted.
Concurrence Opinion
(concurring specially.) I concur in the reversal of the judgment in this case on the ground.that the learned trial court erred in hearing the evidence as to the issue of former acquittal without the intervention of the jury, and in refusing to submit that issue to them. State v. Kieffer 17 S. D. 67, 95 N. W. 289. Upon the other questions discussed by Mr. Justice Fuller I express no opinion.