This case was here before and is reported in
Appellant’s first point is that the indiсtment charges more than one offense and that the demurrer interposed on that ground should have been sustained. The indictment charged defendant with the сrime of “selling and furnishing” intoxicating liquor to a girl of the age of 16 years. Chapter 16, G. S. 1923, mаkes it an offense to sell intoxicating liquor to anyone, whether an adult or а minor. Chapter 290, p. 407, L. 1911, makes it an offense to give intoxicating liquor to a minor. Sеction 3200, G. S. 1923, provides that the terms “sell” and “sale” shall include all barters, gifts and all mеans of furnishing liquor in violation or evasion of law. Sales are not mentioned in с. 290, p. 407, L. 1911. As authority in support of the contention that separate and distinct offenses are set forth in the indictment, appellant cites 33 C. J. p. 735, where it is stated that an allegation that defendant sold or gave away intoxicating liquor to аnother renders the indictment objectionable on the ground of uncertainty. The statement is preceded by one to this effect: An indictment alleging that defendant did sell and give away intoxicating liquor will generally be sustained as against objections on the ground of indefiniteness or duplicity. The indictment in the present case charges defendant with having sold and furnished intoxicating liquors, hence it is not bad for duplicity according to the authority upon which appellant relies.
But the indictmеnt must be read as a whole. It is sufficient if the act charged as the offense is set forth so clearly and distinctly that the defendant cannot fail to understand the nature of the offense of which he is accused, and with such a degree of сertainty as to enable the court to pronounce judgment upon a conviction. G. S. 1923, § 10647. The defendant could hardly fail to understand that the basis of the prоsecution was not a sale but a gift of intoxi- *366 eating liquor to the girl named in the indictment, and the court could pronounce the proper judgment upon a conviction.
Section 1564, R. L. 1905, and G. S. 1913, § 3188, gave substantially the same definition of the terms “sell” and “sale” as is given in G. S. 1923, § 3200. We think the legislature intended by these definitions to reach those who attempted to evade the liquor laws on the pretense that the liquоr was not sold but was given to the person to whom it was furnished, and hold that the indictment stаted but one offense and that the demurrer was properly overruled.
The next point raised is that at most the evidence showed that, in a spirit of hospitality or good-fellowship, the defendant, who was not engaged in the liquor traffic, had made a gift of liquor to a minor. The answer to this is that c. 290, p. 407, L. 1911, unquali-fiedly prohibits the gift оf intoxicating liquor to a minor. The statute speaks for itself. The contention that a gift to a minor as an act of hospitality is not prohibited cannot be sustаined. The only support for the contention is found in a statement in 15 R. C. L. p. 362, which defendant quotes. Whatever view courts in other states may have taken, we deсline to place a construction upon our statute which would make it рossible to give intoxicating liquor to a minor for his consumption as a beverаge without incurring the penalty imposed by law.
We are satisfied that the evidence supports the verdict and that there were no errors in the rulings of the trial court, hence the conviction must be upheld. But the defendant should have beеn sentenced under c. 290, p. 407, L. 1911, which provides that one who violates its provisiоns is guilty of a gross misdemeanor punishable in accordance with the laws of this state. This was conceded by the learned deputy attorney general in his prеsentation of the state’s case. In order that defendant may be thus sentenced, the case is remanded with directions to vacate the sentence imposed and to resentence the defendant for the commission of a gross misdemeanor instead of a felony.