137 N.W. 590 | S.D. | 1912
The defendant, having been -convicted of violating the statute relating to the selling of intoxicating liquors by a registered pharmacist, removed the record of such conviction to this court for review by an appeal from the judgment of the circuit court imposing a fine of $200, and from its order denying his application for a new trial.
Whether it should have been more direct and certain as to all the persons connected with the joint sale is a question not raised by the defendant’s demurrer or his objection to the introduction of any evidence. To raise that question, he should have demurred as in State v. Burchard, supra, on the ground that the information does not substantially conform to the requirements of the Code of Criminal Procedure as to certainty regarding the particular circumstances of the offense charged. Rev. Code Crim. Proc. §§ 222, 272, subsec. 2. It follows that the larned circuit court did not -err in overruling defendant’s demurrer and objection to
While this court might not find, upon the evidence in 'the record on this appeal, that the liquor involved was beer, it cannot disturb the verdict for the reason that Seim swore positively regarding a fact within his own personal knowledge, and the jury were at liberty to believe his testimony notwithstanding it was contradicted by two witnesses for the state, and his credibility was attacked by three apparently disinterested citizens of the community in which he resided. There was no substantial variance, because, as 'heretofore shown, the information alleged a joint sale, and there was evidence tending to prove a joint sale — a single transaction constituting the crime charged.
The judgment of the circuit court is affirmed.