State v. Stone

1. Criminal Law — Evidence—Motion to Strike — Definiteness. A, motion to strike out “all testimony,” etc., "Without specifying the particular evidence sought to (be eliminated, is not sufficiently definite and certain, and the refusal to strike out same is not error. 2. Intoxicating Liquors — Evidence—Remoteness as Affecting Materiality. In .a prosecution for being engaged in selling liguor without license on December 17, 1910, evidence concerning transactions and sales of liguor by defendant ■ or bis clerk in December, 1909, was not too remote to be inadmissible. 3. Criminal Daw — Advising Acquittal — Power to Direct Verdict.- It is not reversible error for court to refuse to advise acquittal in a ci’iminal action-; the court is only authorized to advise; it. cannot direct a verdict. Rev. -Code Crim. Proc., Sec. 376. While the court may .advise an acquittal, the jury are not bound by the advice. The statute takes from the court the power to determine as matter of law, at close of evidence, that it is insufficient to justify conviction. 4. Intoxicating Liquors — Engaging in Business — Assistant Registered Pharmacist — Defense. It is no defense to a prosecution for.being engaged in business of selling intoxicating liquor without license, that accused was at the time a registered assistant pharmacist; an instruction accordingly, is not error; since the only theory on which the pharmacist’s certificate could be material would foe to lay foundation for claim that the offense came under Sec. 2860, Pol. Oode, as amended by Laws 1907, chap. 176, which applies only to sales by registered pharmacists.

Appeal from Circuit Court, Hamlin County. Hon. C. X. Seward, Judge. Uno Stone was convicted of engaging in the business of selling intoxicating liquor without a license, and -he appeals. Under the relations existing between this defendant and C. F.' Hage as shown by the evidence produced at the trial of this action and which is undisputed, the said C. F. Hage could not -be convicted of any violation o-f the law as charged in the information filed against this defendant, for the reason that he was a registered pharmacist, as admitted by the -state, owning and conducting- a pharmacy, -and had therein a stock of drugs of the value of more than six hundred dollars over and above the stock of intoxicating liquors and the fixtures. Sec. 2860 Pol. Code. Even were we to concede that the defendant was liable for the acts of C. F. I-Jage. we would find that it has been held by this. Court in the case -of the State against Dunning and others, 14 S. D. 317, that defendants who were not registered pharmacists and not guilty of a second -offense -could not be convicted of selling intoxicating liquors at retail without a license under Secton 2838 of the Pol. Code. The state failed to show by any testimony introduced at the ■trial that any sales of intoxicating liquors had been made by this * defendant or any person in any manner connected with the business owned by him individually or in partnership with Mr. C. F. Hage, for more than six weeks prior to December 17th, 1910, the date elected by the state as the one on which the offense was committed, therefore there is no evidence in any wise tending to show that the defendant was guilty of the offense charged in the information, and the only sales made by the defendant which the state attempted to show as being made by him was at a time about one year before and no intervening ones, therefore no continuous engaging in the business, and the jury was not warranted in finding the defendant guilty of the offense charged in the information, on December 17th, 19x0, on the evidence introduced by the state at the trial of this action. Admitting, for the sake of argument, that the said C. F. Hage ■ was the clerk of the defendant, he was a registered pharmacist and the defendant was an assistant registered pharmacist owning the drug stone. Sec. 274 Pol. Code. The foregoing section seems to make a distinction between the owner of and the manager of a drug store or pharmacy. An assistant registered pharmacist may take charge of a drug store 01-pharmacy during the temporary absence of the owner or manager. The manager of a business is not necessarily the owner thereof. Ordinarily the word “manager” means one who has the conduct or direction of anything as the manager of a theatre, of a lottery, of a ball, etc. * * * It is often applied to an officer' of a corporation chosen to superintend its affairs. Words & Phrases Vol. V, 4319. No one would, seriously question the right of any person to become the owner of a stock of drugs or of a drug store. Certainly then an assistant registered pharmacist could become such owner, and could employ a manager, and take charge of the drug store under his supervision and in his presence, and could compound medicines and sell poisons, and during the temporary absence of the manager, perform such duties as might be performed by the manager were he present; and under the law would' have the right, in such cases, to sell intoxicating liquors for medicinal, mechanical, scientific and sacramental purposes as set out in Section 2860 of the Political Code, the manager of the. pharmacy, being a .registered. pharmacist, would undoubtedly have the right to sell intoxicating liquors under the provisions of this section. Black on Intoxicating Liquors, Section 2x3. We believe the word “and” in this section (2860) should be construed “or” to give the proper meaning to the statute originally intended by the legislature. “The words ‘and’ and ‘or’ when used in a statute are convertible as the sense may require. A substitution of one for the other is frequently resorted to in -the interpretation of a statute, when the evident intention of the law maker requires it.” Words & Phrases Vol. 1, page 388. Citing People v. Rice, 23 N. E. 846, 847, 138 N. Y. 151; Eisfield v. Kenworth, 50 la. 380, 391; Collins Granite Co. v. Devereaux, 72 N. E. (Me.) 442, 425; Williams v. Poor, 21 N. W. 753, 755, 65 la. 510; Price v. Eorrest, 35 Atl. 1075, 1080, 64 N. J. Eq. 669; Words & Phrases Vol. 1, page 388, citing Seaton v. Grimm, 81 ’N.- W. 225, 226, xo la. 145; Words & Phrases Vol 1, page 389, citing Streetor ’v. People, 69 Ill. 595, 597- The defendant claims that the court erred in refusing- to strike from the record, the testimony of Peter Person, one of the witnesses for the state, on the ground that the evidence was incompetent, irrelevant, and immaterial and not showing that there was any sale of intoxicating liquors, or any engaging -the business by the defendant, his agent or employe, and it is too remote in point of time and does not tend to prove the offense charged in the information. This evidence was prejudicial to the rights of the defendant and should have been striken out by the lower court. Being evidence tending ¡to show the commission of a former similar offense, we /think the weight of authority is strongdy against its admission. Underhill on Criminal Evidence, Section 87. The court erred in denying defendant’s motion to strike from the record all testimony as to sales of intoxicating liquor made by the defendant -in Deceniber, 1909; for the reason that they were irrelevant, incompetent and immaterial and that they did not tend to show the guilt of the defendant, and no continuous business. The court erred in refusing to advise, the,jury to return a verdict of “not guilty” at the close of the state's testimony, on "motion of the defendant. If engaging in the business on any one day is a separate and complete offense, there is no evidence whatever on which to find, the defendant guilty of-the offense charged in the information, on December 17, 191.0, and the state having given evidence of sales on different days it was proper -that they .should elect the date upon which they would rely for the conviction of this defendant. Therefore, the court erred in not advising the jury to acquit the defendant of the offense as charged. That part of the tidal court’s instruction, set out in error number seventeen of the assignment of errors, was- misleading to -the jury and was erroneous for the following- reasons. - ■- (1) That the instructions misstated the law in that portion in which the court statéd it was not necessary that any sales were made on December 17,'1910, but if the jury believed 'from 'all the evidence of the transaction, or matters before or after that- date that the defendant was at said time engaged in the business, then it was -their duty to'find him guilty of the offense charged. We think that it was necessary to show that the defendant was on December 17, 1910, engaged in .the business of' selling intoxicating liquors before he could be convicted of an offense committed on that date. Section 2838 of the Political Code provides that each violation of the provisions of that article on the same day or different days should be a separate and complete offense. We therefore must conclude that' if -a man was not selling intoxicating liquors on a specified date, he could not be convicted of having committed the offense on that date.. The defendant was liable for the crime charged in the information as a result of sales of intoxicating liquor either by himself, or by Mr. H-ague as his clerk or partner. There is abundance of evidence showing that defendant sold liquor in person. He was not protected by bis certificate as Registered Assistant Pharmacist. Sections 272-4, Pol. Code, define a registered pharmacist and a registered assistant pharmacist Section 2860, Pol. Code, only makes it lawful for a registered pharmacist' to sell intoxicating liquors, and it; was clearly not the intention of the Legislature to include registered assistant pharmacists, or it would have expressly mentioned the term- “registered assistant pharmacists” also. The words, in Section 274, Pol. Code, “Any registered assistant pharmacist shall have the right to compound medicines or sell poisons, under the direct -supervision of a registered pharmacist and he may take -charge of a -drug store or pharmacy during the temporary absence of the -owner or manager thereof,” as modified by the proviso-, “that nothing herein shall be Construed as giving s-uc-h assistant authority to .continuously perform any of the- duties herein mentioned except under the supervision and in the presence of -the manager,” cannot be -construed so- loosely as to authorize this defendant to sell intoxicating liquor without a license, or exercise the right to sell, which was given, strictly to registered pharmacists only, in Section 2860, Pol. Code. Respondent has incorporated an additional statement of facts in -its brief for the purpose of showing that the -evidence apparently proved to the jtrry beyond all reasonable doubt that defendant was engaged in the business of selling intoxicating liquors, -and not only made personal sales, but also allowed sales to be made by Mr. Hague in his -presence, and consented and acquiesced therein. These errors relate to the refusal of the court to strike out the testimony of Peter Pierson and all evidence of .-sales by the defendant in December, 1909. We do- not consider -these assignments reviewable -by this -court, but in -case they -are properly -before the court w-e think this evidence was clearly admissible under the information • as showing “an engaging in the business” and a continuous business. All such evidence is admissible under the information, if i-t related to facts occurring any time within the period of limitation. 23 Cyc. 227, 240, 262-3, 269, 276; Black 011 Intoxicating Liquors, Sections- 460, 482; State v. 'Burchard, 4 S/ D. 548, 75 N. W. 491. This -evidence was also admissible for the purpose of showing what kind of trade the defedant catered to, -the 'large number of persons going to and coming away from his place in an intoxicated condition, the character of his customers, the character of his place of busineS®, -and to establish tha-t he was engaged in the business of selling intoxicating liquors. 23 Cyc. 351. The verdict of not guilty was properly not -directed where there was some evidence of “an engaging in the business” on that day. Error cannot be predicated upon -the refusal of -the c’ourt at the close of -the state’s case to advise the jury to return a verdict of not guilty, as the jury is not bound by such advice. State v. Albertson, (N. D.) 128 N. W. 1122; Section 376 Criminal Procedure. The defendant complains of the court’s instructions that it was not necessary that any sales were made on December 17, 1910. There is no error in this assignment. Where the information charges tha-t defendant “engaged in the business of selling intoxicating liquor without a license” as distinguished from the offense of an unlawful sale, there must -be some evidence of continuing in the business- and a single act or sale is not sufficient to establish this fact. 23 Cyc. 276.