7 S.D. 98 | S.D. | 1895
The plaintiff in error was indicted, tried, and convicted, in the circuit court of Minnehaha county, of the crime of selling intoxicating liquors as a beverage, in violation of the provisions of the prohibitory liquor law of this state. When the pase was called for trial in the court below, the plaintiff in error, by
On the trial, Palmer, a witness called on the part of the state, testified that he bought whisky and beer of the defendant two or three times in January, 1893. Munn, a witness on behalf of the state, being then called, testified, over the objections of the plaintiff in error, that he bought whisky and beer of the defendant in March, 1898. Thereupon the cotinsel for the plaintiff in error moved the court to compel the state to elect upon which sale it would rely, which motion wag overruled, and the plaintiff in error, by his counsel, excepted. The two witnesses above being the only witnesses on the part of the state, the question is fairly presented as to whether or not the state should have been required to elect upon which sale it would rely for conviction. The decisions are irreconcilably in conflict upon this question, and a review of them would be of no practical benefit. After mature consideration of the question, we are inclined to follow the line of decisions that hold that in such a ease the state must elect. This seems to be in harmony with the principles governing the trial of criminal cases. The defendant in such a case is entitled to be tried for one offense only, under the statute, and not for several offenses at the same time and under one indictment. Under the statute, only one offense can be charged in the same indictment. Comp. Laws, §7244. If only one offense can be charged, it logically follows that only one can be proven and relied upon for a conviction. Before the defendant