State v. VanderpoolState v. Vanderpool
- Reporters:
- Before:
- Evans
The defendant was indicted under Section *442461-а of the Supplemental Supplement of 1915. The section is as follows: ’
“Sec. 2461-a. Any рerson who shall, by himself, or his employee, servant or agent, for himself or any person, company or corporation, keep or carry around on his persоn, or in a vehicle, or leave in -a place for another to secure, any intoxicating liquor as herein defined, with intent to sell or dispose of the same by gift or othеrwise, or who shall within this state, in any manner, directly or indirectly, solicit, take, or accept any order for the sale, shipment, or delivery of intoxicating liquor, in violation of law, shall be termed a bootlegger, and shall be guilty of a misdemeanor.”
The indictment was rеturned in May, 1921, and charged the offense as having been committed on July 1, 1920, and subsequent‘dates. The State introduced evidence tending to prove sales of whisky by the defendant undеr circumstances consistent with the charge in the indictment. This evidence was conсentrated largely upon two dates, April 2 and April 9, 1921. Direct evidence of sales made by the defendant on each of said dates was introduced by the State.
I. .At the clоse of the evidence for the State, the defendant moved that the State be required to elect whether it would prosecute the defendant for the alleged sаles of April 2d or for the alleged sales of April 9th. This motion was denied. The defendant assigns error upon this ruling, and this is the only error laid by him as a ground of reversal. His argument is that the sales upon these respective dates were separate offenses, and thаt the defendant could not be prosecuted for both under one indictment.
Counsel misconceives the scope and purport of the statute under which the indictment wаs found. The gist of the offense therein defined is to keep or carry on the persоn intoxicating liquor, with intent to sell. It is analogous to the liquor nuisance statute, in that it is a continuing оffense. The prosecution under this statute is not a prosecution for unlawful sale. It wаs incumbent upon the State to prove, not only the keeping of the liquor by the defеndant on his person, but also the intent to sell. For the purpose of proving such intent to sell, it was *45competent, and material for the State to prove actual sales, and it was permissible for it to prove as large a number оf sales as it could, within the period of limitation. There was no limit upon it in that regard. It was undеr no requirement to elect upon which sale it would rely as evidence of intent. It wаs entitled to rely upon all of them as cumulative evidence.
We find no merit, therefore, in the point made.
II., The defendant complains of the severity of the judgment, and asks that we reduce the same. The judgment was indеed severe. But there was little, if any, mitigation for the offense. No data is presented to us upon which we could predicate a finding that the punishment was excessive. None appears to have been presented to the lower court. We hаve before us only the evidence introduced, as bearing upon the question of guilt or innocence. The defendant is a farm renter, and has a family dependent upоn him. His circumstances, therefore, are such as to magnify rather than minify the practical operation of the judgment. It is said in argument that it was his first offense. There was no affirmative showing on that question. If, in the defendant’s circumstances, the judgment had been less severe, we should have been quite as well satisfied with it. On the other hand, the sales of liquor prоved were flagrant. They were made to very young men. These young men were, in eaсh case, on their way to a dance, to meet other young people. One sale was a sale of two quarts to two young men at $5.00 a quart. The liquor contained 37 рer cent of alcohol. The sales proved were made readily, and with a facility indicating an efficient system, in working order. How far the trial court may have followed these clues and investigated the circumstances of aggravation or mitigation, we have no means of knowing from the record. A fine melts rapidly in the atmosphere оf a market at $5.00 a quart for corn whisky. Instead of discouraging or restraining the defendant’s resort to such a market, a mere fine sometimes, if not usually, operates, by the necessity which it creates, as an inducement to continue the business for the purpose of paying the fine.
Upon the record presented to us, we would not be justified
*46in interfering with, the judgment of the district court. It is, therefore, — AjJirmecl.
Preston, C. J., Stevens, Arthur, and Faville, JJ., concur.