20 S.D. 492 | S.D. | 1906
Upon proof confined by the court to- an unlawful sale of intoxicating liquors in quantity less than five gallons to-Herman Van dry, plaintiff in error, a registered pharmacist, was-tried and convicted under an information sufficient as to time and place, and possessing the requisite degree of certainty to charge the accused with a joint sale to U. Cochrane, John Hogan, Frank Hultz, W. E. Totten, Chas. Replogle, and Herman Vandry and, the question being properly saved fo'r review, we must now determine whether there is a fatal variance between the evidence and the allegations of the information.
In the case of State v. Burchard, 4 S. D. 548, 57 N. W. 491, a judgment convicting the defendant of the crime of selling intoxicating liquors unlawfull)'- was reversed for the sole reason that the purchaser was not named in the indictment, and it has been quite uniformly held by courts entertaining a contrary view, that when the person to whom the sale was made is unnecessarily named, the proof must correspond with that allegation. Black on Intoxicating Liquors, 517. Of course there can never be a sale in any traffic without a purchaser, and he is so connected with the vendor of intoxicating liquors that no unlawful sale can be charged in a manner to constitute a public offense without naming him or otherwise identifying the transaction so that the accused may know whether to plead guilty or prepare to defend and, in case of a conviction or acquittal,- be able to plead the judgment in bar of another prosecution for the same offense. The view that the name of the purchaser is essential to- a sufficient description of the offense is sustained by the great weight of authority, and the elementary rule that'the proof must correspond with the pleadings is applicable alike to civil and criminal actions. State v. Shanley (S. D.) 104 N. W. 522. While the accused might have prepared to repel the suggestion that he ever participated in a sale of intoxicating liquors to the six persons named, no opportunity was given him to produce
In determining the effect of omitting the name of the purchaser, Judge Corson, speaking for the court in State v. Burchard, supra, used the following language: “Can such an indictment be sustained under the laws and Constitution of this state? Sec. 7, art. 6, of the state Constitution, provides that, ‘in all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation against him;' to have a copy thereof? And sec. 7241, Comp. Laws 1887, provides that the ‘indictment must contain *>,s * a statement of the acts constituting the offense, in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended? Under these provisions of the law and Constitution we are of the opinion that the offense must be set forth with sufficient certainty, not only to enable a person of common understanding to know what is intended, but with sufficient certainty to enable the accused to prepare his defense in advance of the trial, and to' enable the trial court to know that the accused is being tried upon the identical charges passed upon by the grand jury when finding the indictment. Tested by these requirements, the indictment is clearly insufficient. The accused could understand from this indictment that he was charged with the offense of selling intoxicating liquors as a beverage, but to whom, when and where, it gives him no information. Of what possible benefit would a copy of the indictment be to the accused? What preparation could he make for his defense under it? How c uld the trial court determine that the offense for which the accused was being tried was the one for which the indictment was found by the grand jury. The only practical method of making-such an indictment sufficiently definite and certain is to require it to give the name of the person or persons to whom the intoxicating liquor is alleged to have been sold, if known, and, if unknown," to give some other description of the offense that will identify it.”
So, in this case, the specific act of which the state complained was a joint sale to six persons named, and a copy of the information would advise the accused that he was called upon to answer,
The one act charged being the unlawful sale of intoxicating liquors to these six persons, the only question presented by the information and plea of not guilty was whether such joint sale was actually made. Granted that the accused at the time mentioned sold something less than five gallons of intoxicating liquors to the purchasers named, the presumption that the sale was lawfully made for a medicinal, mechanical, scientific, or sacramental purpose would of necessity prevail, unless overcome by competent proof beyond a reasonable doubt. The variance between the information and proof is fatal, and no other assignment of error requires attention.
The judgment of conviction is reversed.