23 S.D. 293 | S.D. | 1909
Lead Opinion
This cau,se comes ¡before this court upon an appeal from the verdict and judgment of the trial court finding the
The facts .which are shown beyond all dispute by the evidence received are as follows: On the date in question a certain band, of which said Stolteniburg was a member, was engaged to furnish music at a political meeting in the city of Clear Lake in this state. The members of said band all resided in or near a neighboring town. This band had some 16 or ly members, a large par,t of whom were boys ranging in age' from 14 years up; the said Carl Stoltenburg being 16 years of age. The leader of this band was one Edward Sarver, an adult person. After the political meeting was over with, which meeting was held in the evening, the'band got together and visited a certain saloon, other than the appellant’s, and played several pieces therein, and from there went into the saloon owned and operated by the appellant, Ole Johnson. Johnson was at the time personally in charge of said saloon. It appears that the band, after entering said saloon, formed in a line and played two pieces, after which they were invited to the bar by Johnson and treated. There is some conflict in evidence as to the class of liquors drank, but under the charge preferred here this is immaterial. It took from 10 to 15 minutes for the band to play the pieces played by them in appellant’s saloon, and after this it would appear that the band immediately withdrew from the saloon.
There are numerous assignments of error to be found in the abstract herein, but these can all be considered under certain headings, and are so considered by the appellant in his brief. The appellant claims: That the evidence does not show that Stol tenburg did in fact “visit in” in the saloon of the defendant; that the evidence does not show that Stoltengurg did in fact “remain in” the saloon of defendant; that the evidence fails to show that Stoltengurg was not “accompanied by his father, mother, or guardian”; that it does show that he was accompanied by his
The appellant strenuously contends that a mere temporary call at a saloon for a purpose such as to furnish music therein, such call standing alone and unrepeated, is not within the intent of our statute forbiddine a minor to “visit or remain in” a licensed saloon. Appellant cites certain cases from Texas, which apparently support his contention. We do not kno-w what the full statutory law of Texas is in relation to the sale of intoxicating liquors, but it does appear that their statute, instead of reading “visit or remain in,” reads “enter and remain.” In oonstruing a statute the whole of the same should be considered together, so as, if possible, to give to each part thereof such construction as will render the whole law harmonious and consistent, the one part with the other. It was held by this court in the case of State v. Barber, the so-called Hetland Case, found in 19 S. D. 1, 101 N. W. 1078, that we have a prohibitory law with' local option prohibition. It was also held in State v. Grant, 20 S. D. 164, 105 N. W. 97, that proof that the saloon was open at all on Sunday, without some evidence explaining same, rendered the proprietor thereof guilty under our Sunday closing section of this law. In State v. Schell, 22 S. D. 340, 117 N. W. 505, this court held in relation to keeping saloon open on Sunday that it was absolutely immaterial as to the Saloon keeper’s intent in opening it, and this court has even held that under provisions of our law the proprietor would be held guilty if his employe opened the saloon without his knowledge and against his express instructions. We must therefore admit that our Legislature, in passing our intoxicating liquor law, recognized to the full extent the evils flowing from the liquor traffic, and it certainly was the purpose of the Legislature to prevent, if possible, the evil
Appellant contends that Edward Sarver, the instructor and leader of this band, was the guardian of these young men, within the meaning and intent of the statute involved herein. We think there can be no question of what the Legislature meant by this word “guardian,” and that they meant a person who occupies under the law that relation to the minor which the natural law creates between the parent and child, or which is created by some order of count, and that it did not mean that any person, who had minors under his care, was by virtue thereof vested with the right, or -by the parent could be vested ’with the right, to take the children of this state in,to places held by our law to be -injurious to
Appellant contends that this case is not within the spirit of the law. We have already called attention to some of the facts surrounding the transaction. It also appeared in evidence that the adults, if none other, drank intoxicating liquors while in there, and under the state’s evidence, it appeared that the minors also were treated with intoxicants, and that other boys, not members of the band, Iwere allowed in this saloon during most of the time the band was in there. The testimony of the appellant reveals the fact that he knew these other boys, as well as members of the band, were minors. If admitting a boy 'into a saloon, under such circumstances and with such things going on while they are in there, is not a breach of the spirit of the law, we are unable to imagine what would be necessary to constitute a breach of this law.
Appellant moved in arrest the judgment, claiming that the information was not sufficient, in that there .was no averment as to the time when this offense was committed. The information recited in the first part thereof, that Ole Johnson did commit the crime on the 24th day of February, 1908, and then in the usual form, recited in detail the facts constituting the crime, alleging that he [Johnson], being proprietor, then and there, of a licensed saloon at the place claimed, did willfully and unlawfully allow said Stoltenburg to visit, et.c. It is contended that the words “then and there” should have been inserted again after the word “did” and before the word “willfully,” and that without those words there is nothing to show when this offense was committed. There is nothing in the appellant’s contention.’ It will be noticed
There being no error in the record, the judgment of the trial court and order denying a new trial are sustained.
Dissenting Opinion
(dissenting). In my opinion it does not appear from the evidence that the minor was allowed “to visit or remain in” defendant's place within the meaning of the statute.
