State v. Laymon

May 1, 1918
File No. 4214
Reporters:
, ,
Before:
Polley
POLLEY, J.

Dеfendant, a registered pharmacist conducting a drug store in the town of Hetland, was convicted of selling intoxicating liquor to be used as a beverag-e, and ítem a judgment imposing a fine off $200 be appeals.

[1] It is first contended by appellant that the information on which lie was tried chargee two separate offenses, under the statute, .and that therefore -said information is- bad! ‘for duplicity. This contention is based upon the fact that the said information charges that, at a specified time and place, defendant did “sell” and “give” intoxicating liquor to the person named ‘in said ‘information, while the statute (section 2860, Pol. Code, as amended by chapter 176, Laws off 1907) under‘which‘tine information is dirawn makees it an offense to “sell’” or ‘“give,” etc. ’ This con-

*385tentioin -is sio fully answered ¡by what is said by ‍‌​​‌‌​‌​‌​‌‌​​​‌​​​​​‌​​‌​​​‌‌​‌​​‌‌​‌​‌​‌​‌​​​‌‍this court in State v. Bradley, 15 S. D. 148, 87 N. W. 590, that further discussion, of the proposition is wholly unnecessary.

[2] It is next contended by apрelant that the information is insufficient to support a conviction. This contention grows out of a confusion of terms used in section 2860, Revised Political Code of 1903, as amended by chapiter 176, Laws of 1907. This section, as amended), defines two separate and distinct offenses, and attempts to prоvide a different penalty for each offense. The first provision, in general terms, malees, it unlawful for a registered pharmacist to sell intoxicating liquors to be used as a beverage, without regard foi the granting of permite to sell the same, and1 provides that any pharmacist who sells intoxicating liquor in violation of the provisions of “this’ section” shall be punished by a fine of nolt tes® than $100 nor more than $300, etc. The next provision of said section malees it unlawful for a registered pharmacist to sell intoxicating liquors in any precinct, town, or city that has voted against the issuing of permits to sell intoxiсating liquors, except upon a prescription of a licensed resident physician, and provides that any pharmacist who, violates the provisions of “this section” shall be punished by a fine of* not to- exeeel $100, or imprisonment, or ’both, etc. Thus, if read literally, the penalty provided by either provision of the sectiolm applies equally to* the offense defined in the other provision. But such an interpretation would, of course, be preposterous. The penalties imposed for the different offenses are radically different. It is very cteair that .the Legislature meant thаt the penalty prescribed in the first provisiioto of the statute shall aipply to the offense ‘defined in that provision, and that offense only. And’ the same is true of the penal,ty prescribed’ in the second provision. If before the words “this section,” .in each place where they are used, the words “this provision of” were inserted, the meaning of the Legislature would be clear. Thus, by interpolating into, each provision before the words “this section” the phrase “this provision of” so that it would read “this provision of this section,” there would be no Confusion, and the very evident intent of the Legislature, wоuld be dearly expressed. This interpretation harmonizes the various provisions of the said section, and, in our opinion, expresses the intent of the Legislature.

*386[3] Applying the statute as thus interpreted’ to- this case, we find that the information has been drawn under the first of the above enumerated prоvisions of tire said section. The information contains all the ‘elements of this offense, and it contains 00 dement, not common to both offenses, constituting the offense defined ‘by the second’ provision of the statute. All the evidence on behalf of the state was aJimed at the offense ‘defined by the first provision. The penalty imposed by the court is the penalty ‍‌​​‌‌​‌​‌​‌‌​​​‌​​​​​‌​​‌​​​‌‌​‌​​‌‌​‌​‌​‌​‌​​​‌‍prescribed for the first-named offense, and is one that could not be imposed1 for the other. The case was tried by both the state and the appellant 00 the theory that appellant was charged with ‘the commission of tlhle offense defined in the first ptnovisiioln of the law. No claim is made by appellant that the inftortmiatiioni ‘charges the offense defined in the second provision, or that he Was misled or unable to prepare has defense, and we are fully satisfied1 that his rights were in no wise prejudiced.

[4I At tiie beginning of the trial, certain of tine veniremen on the panel were challenged1 by appellant for actual bias, appellant contending that it clearly appeared from the examination ■olf these veniremen on their voir dire that two1 of them had fixed opinions relating to the guilt or innocеnsie of the appellant and that another was so biased and prejudiced against appellant that be was dearly disqualified’ to act as a juror in the case. But these challenges were overruled, and, to avoid being tried by jurors whom be considered disqualified to act in the case, appellant was obliged to and did exercise a peremptory challenge upon each of such veniremen. Appellant contends that the ruling of the trial court in denying bis said challenges for cause Constituted ■reversible error. If the said veniremen were in fact disqualified, because of actual bias, it was error, of course, on the part of the trial’ court to overrule the said challenges, but it does net necessarily follow that siu!ch error is reversible. Each of said1 venliemen was excused by appellant on peremptory challenge, and the real error, If there was erro‘r, consisted in compelling the appellant to exercise Shiis peremptory challenges upon veniremen who should have been excused for ¡cause. It is not necessary to determine whether the said veniremen were ‘disqualified to act as! jurors or not, ‘because, not having ‘served -upon the‘jury, of course the ¡appellant was not injured by the overruling of his challenges *387not by being compelledto exercise his peremptory challenges upon isiaid veniremen, unless it appears that there were other members Of Ithe panel upon whom hie wished to. ex-eroLsle his peremptory challenges, or upon whom he would have exercised his peremptory challenges had he not been compelled to exhaust such challenges upon tlhe veniremen whom he considered were-disqualified! to act in the case. But appellant dоes not contend that there was any one otn the jury whíotn he wished to exercise a peremptory challenge, or upon whom he would have exercised such ’challenge tod he been, permitted’ to. do so, nor that there whs any one ora the jury to whom he had ‘any objection, nor that he preferred any other member olf ¡the panel toi any one who served as a juror, nolr that he was in any wisie prejudiced by the errors complained of. So far ais appears from the record, the personnel of the jury was exactly ¡the satae as it would have been had appellant’s challenges for cause been ‘allowed by ¡the court. This being the case, under the wed-established rule of this ‘court, siu‘dh error is riot reversible.

[5] It is contended by appellant that the trial ‍‌​​‌‌​‌​‌​‌‌​​​‌​​​​​‌​​‌​​​‌‌​‌​​‌‌​‌​‌​‌​‌​​​‌‍court permitted the state to. cross>-examine and in part to impeach its own witnesses. That in sо doing the well-established1 rule that a party cannot cross-examine or impeach his own witnesses was’ violated, and that appellant’s rights were prejudiced thereby. There i& no doubt that the rule is correctly stated by appellant, but it is not an invariable rule toi be adhered to in all cases and under all ckoum-stances. Where a¡ witness is unwilling tO’ testify or is hostile to the party calling him to the-stand, and1 -it is1 ‘apparent that he is not telling the ruth or is concealing the truth1, or where his testimony is contrary to statements, purporting to he facts, made by him before he went upon the stand, or ¡is contrary to what he has led’ the party placing him upon the stand -to believe it would be, then, in order to ascertain the truth, it is within the province of the trial court to permit the party placing’ such witness upon the stand to. cross-examine suioh Witness1, or even to impeach him. But wtot constitutes a proper case for’ proceeding in this manner is ‘to be determined by the trial Court in the exercise of sound1 judicial discretion, and, unless it appears that such- dislcrebioo has been abused by the trial court, the course pursued by it will not be disturbed’ by this court. In this *388case, tibe witnesses were called to the stand to prove thаt appellant hadi been making’ a practice of selling intoxicating- liquor in violation of law. Each testified tihait he had made purchases himself, but in each case testified1 that the liquor so purchased! by him had been purchased for medicinal purposes, and not to be usdd as a beverаge. It appeared1 tihait some time before tibe trial certain proceedings, known as “John Doe” proceedings, bad been had, wherein these ‘same, witnesses had been examined and had sworn to certain statements relative to’ sales of intoxicating liquor made by appellant. It was clalkmed by the state’s ‍‌​​‌‌​‌​‌​‌‌​​​‌​​​​​‌​​‌​​​‌‌​‌​​‌‌​‌​‌​‌​‌​​​‌‍attorney that the testimony of these witnesses’ while on the stand differed materially frota statements made ,by them in the said .affidavits; and, for itihie ¡purpose of refreshing the recollection of such witnesses feunld testing the truth, of their testimony, their attention was called to Said affidаvits‘, and the sítate’® ‘attorney was permitted to teros®-examine them relative to the conflicting statements- so1 made. We believe tire facts as above shown bring the case within tire exception’ to .tine well-established! rule, anid! that tiñere was mo albusie of ‘discretion by the trial court in permitting such cross-examination.

[6] At the .trial tine court, Over appellant’® objection, permitted tine prosecution to show that, prior to amid ‘about the time of the sale upon which this prosecution is biased, appellant had made Safes of intoxicating liquicir that the state claims were illegal, to a oomisiderahle number of parities other than time party named in time information, and also permitted the state to show that an investigation of appellant’s premises, about (the time of tine said sfafe, disclosed the presence of intoxicating liquors) of various kinfds, in quantities far greаter than would have been, carried, or could probably have been sold, for lawful purposes. The admission Off this evidence, appellant contends, constitutes reversible error..

Tire rule is well establisheed that, in a trial upon a criminal charge, ‘evidence of independent offensеs other than that ‘charged in th!e «formation is not admissible, but there is am exception to this mule in cases where the criminal intent must be inferred from facts or circumstance® other than the act constituting the offense charged fa tire information. In most criminal1 cases, such’ ¿s’ larceny or forgery, for instance, tire orimlimal ‘intent may be *389inferred, from the act constituting- the offense. But imastmi,chas ‘the sale of intoxicating liquor at (that time was legal under some ‘Circumstances and1 whether such sale was unlawful in any-given case,-depended upon the intent of the accused parity at the time of (the salе, it is competent for the court to reoeive ‍‌​​‌‌​‌​‌​‌‌​​​‌​​​​​‌​​‌​​​‌‌​‌​​‌‌​‌​‌​‌​‌​​​‌‍evidence tending to show (that defendant was malting a practice of selling intoxicating liquors ■illegally, and ‘that -he had in his possession intoxicating ‘liquors in greater quantities than oould probably be disposed -of for legal purposes, and there was no error in the admission of the -evidence complained of.

[7] It is further contended by appellant that the evidence is not sufficient to support the verdict. The -only evidence tending to prove the -sale -charged- in the information is the testimony of the -purchaser. He (testified that, upоn the -occasion in question, he went into appellant’s store and asked for a “quarter’s worth of rotgut”; that something was said about what (he wanted it for; that defendant said, “ ‘You -want it tf-oir medicinal purposes ?’ Or something like that.” But, on cross-examination he said that he did not remember (whether defendant asked him if it was fori medical purposes or not; that defendant gave him a small- bottle of whiskey, about four or five ounces. He also testified1 that he Was bothered with -a stomach trouble at the time of such purchase, a bad feeling ‘in his stomach; ‘that he used the whiskey for such- trouble, and that it benefited him. Hе said he- did not like ‘whiskey, and that he did- not buy it to use as a beverage, and that he -did not drink it - merely as a beverage. He also testified that he never bought whiskey except for medical purposes, ‘and- that he could not get whiskey from defendant for either ‘than medical purposes, but the -evidence shows- that he drank all ‘there was in the -bottle within two Or three ‘hours after he purchased it.

This is all of the direct -evidence, and it is contended by appellant that such evidence tends to support his theory rather than that of itihe state. With this .contention we cannot agree. The ■evidence is the bеst, in the absence of a plea o(f -guilty, of which the case is susceptible. It must be borne in -mind that it is the guilty knowledge that /an improper usie is toi be made of the intoxliaatinig liiqiuo-r in question, and not -the act of making the sale, that ‘constitutes the gravamen df the offense; and, in arriving at a *390ooooluigion., tíre jury w‘as ‘wanrantecF in taking info’ consideration all tine cirduimislbances sur.riauinidling foe transaction. In this connection foie .conduct of foe purdiasar ait foe time of foe purchase is of importance. The fedfc that he ashed for a “quarter’s worth of E‘otguit” may have indicated to¡ ¡the jiutny folat he was not acting i.n good faith when he said he wanted foe whiskey for medicinal use. There does not appear to have been ‘anything about foe uirdhaser’s appearance indidating that he was sick or in need of medicinal assistance. The fact that appellant took no steps to ascertain that the purchaser wanted it for medicinal purposes other than ¡the remark, “You want it for medicinal purposes?” if indeed he said that much, is a siigbifioainit circumstance. The further fact that the purchaser consumed foe entire ‘contents of foie battlе, though it may not have exceeded four or five ‘ounces, within ;a daupile of hours after he purchased it tends to impeaah his testimony to foie effeat that be wlanted the whiskey for medicinal (purposes. These are all matters’ foiat were properly taken into eoinsid‘eraltkm by the j‘uiry, anld, if from1 these facts and all foe circumstances surrounding foe case, foe jury ware convinced of appellant’s guilt, foie verdict should be allowed to¡ stand.

The judgment and order appealed from are. affirmed.