State v. Stone

Oct 1, 1912

Reporters:: , ,
Before:: Haney

HANEY, J.

The information charges that the defendant was engaged in the business of selling intoxicating liquors, without a license, in Hamlin county, on October 25, 1910. On the trial it was stipulated that the defendant had no permit to sell during 1910. On defendant’s motion, • the state was required to elect, аnd elected to rely upon December 17, 1910, as the date of the alleged offense. So the material issue for the jfiry was whеther the defendant was engaged -in the alleged business on that date.

[ 1, 2] The state having rested, the defendant moved -to strike from the record “all testimony as- to transactions which occurred, and as to sales of -intoxicating liquors made, either by the defеndant or his clerk, -during the month of December, 1909, for the reason that they are incompetent, irrelevant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and immaterial, and being a little less than one year -prior to the -time charged in the information that the defendant was guilty of-‘the offense; for the rеason, further, that there is no evidence tending- to show that there was any continuing business from said December-, 1909,. up- to the *30time alleged in the information, and also the time elected by the state, which was December 17, 1910.” This motion was properly overruled. It was not sufficiently definite and certain as to the testimony sought to be excluded; nor was any transaction disclosed by the evidenсe too remote to be admissible.

[3] Reversible errors cannot be predicated upon the refusal of the court to advise an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍acquittal. In- a criminal action in this state, the court is only authorized to advise; it cannot direct a verdict. Rev. Code Crim. Pro. § 376. The following- conclusions of the Supreme Court of California as to the effect of the statate meet with our approval: “It must be bornе in mind that the court has no such power to control the action of the jury as in civil cases; for in criminal cases the court cannot direct, but only ‘advise,’ an acquittal. We cannot say, therefore, that defendants were prejudiced by the refusаl so to advise, since‘the jury might, notwithstanding- the advice, have found the defendants guilty; and, if so, the verdict could not he set aside,’ upon the ground that the jury had disobeyed or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍disregarded the instruction of the court, bu-t only upon motion for a new trial upon the ground that the verdict was not sustained by the evidence. The obvious effect of this provision of the Penal Code is to take from the court the power to determine, аs a matter ‘of law, at the close of the evidence for the prosecution, that the evidence is insufficient to-justify a сonviction.” People v. Daniels, 105 Cal. 262, 38 Pac. 720.

The remaining assignments of error relate to the instructions and sufficiency of the evidence. It is undisputed that the defendant was conneсted with the drug business conducted in Hamlin county from March, 1909, to, the time of the trial. The state’s evidence tended to prove sales of intoxicating- liquors ‘by the defendant, or with his knowledge and consent, in October and December, 1909, in September, October, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and November, 1910, and on several occasions subsequent to December ‘17, 1910, the date of the allegéd offense relied upon by the state. It also tended, to ■prove delivery’ to defendant by the railroad company of unusual quantities of intoxicating liquors at different times preceding such ‘date‘. The defendant testified that he was an assistant registered *31pharmacist from 1908 to about January 19, 1911, when he received a registered pharmacist’s1 certificate; that one Hag‘e, a registered pharmacist, whо, together with the defendant gave personal-attention to the business conducted at the place of the alleged crime, was in partnership with the defendant from March to November, 1910; that the liquors received from the railroad company were all used in compounding drugs and medicines; and that he “did not remember” having made any of the sales described ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by the witnesses for the state.

[4] The court, in effect, charged that it was not material whether any sales occurred on December 17, 1910, the date relied upon; that the real issue was whether, on that date, the defendant was engaged in a business consisting, in whole or in part, оf the sale of intoxicating liquors; that it was no defense if he was at that time a registered assistant pharmacist; and that the fact that Hjage was a registered pharmacist was immaterial, unless he was a bona fide owner of an merest in the -drug business. The last proposition was more favorable to the defendant’ than was justified by the evidence, for the reason that the defendаnt’s own testimony showed that Hage had no -interest in or connection with the business ‘on the date of the alleged offense. Henсe the only questions requiring attention are whether it was necessary for the state to prove sales on the precisе date relied upon, and whether the defendant’s assistant pharmacist’s certificate constituted any defense if -he was еngaged in .the alleged business on that date. “The gist of the offense -is the engaging in the business without the required license.” State v. Williams, 11 S. D. 64, 75 N. W. 815. The еlements of the crime are:. (1) The procurement or possession of intoxicating liquors with intent to sell the same, and (2) the cаrrying out of such intent by one or more sales. One does not cease to be engaged in his chosen business by reason of his omissiоn to make sales on one or more days of each month. It was therefore wholly immaterial whether any sales occurred on the precise day relied upon. The defendant was engaged in the alleged business on that date if he continued in’ рossession of intoxicating liquors, and was ready and willing to sell ’ the same ‘whenever a purchaser appeared.

*32The effect of the defendant’s certificate as an assistant registered pharmacist was not misapprehended by the learned trial court. The only’ theory upon which it could be considered material would be that the unlawful sales by reason thereof constituted an offense under section 2860 of the Political Code, as amended by chapter 176 of the Laws of 1907, a different offense from that charged in this action; such theory being- untenable, for the reason that section 2860 by its terms applies1 only to rеgistered pharmacists.

The evidence was amply sufficient to justify the jury in finding the defendant was in possession of intoxicating liquors with intent to sell the same at retail; that he was engaged in the alleged unlawful business on December 17, 1910, the date relied upon by the state.

The judgment of the circuit court if affirmed.