People v. Hamilton

59 N.W. 401, 101 Mich. 87, 1894 Mich. LEXIS 881

Opinion

McGrath, C. J.

The information charges that on the 1st day of March, 1893, and on divers days and times between that day and the 7th day of May, 1893, respondent did sell and furnish to one Bryant certain quantities of spirituous liquors, aggregating in amount, between said dates, three gallons and three quarts of whisky, the said Bryant being then and there a person in the habit of getting-intoxicated, and respondent being then and there a druggist and registered pharmacist.

It is contended that the information does not allege that the' liquor was sold to be used as a beverage. The statute prohibits a sale to a minor, except for medicinal or mechanical purposes, on the written order of the parent •or guardian of such minor, or .to any adult person whatever who is at the time intoxicated, or to any person in the habit of getting intoxicated, or to any person when forbidden, etc., or to any other person to be used as a beverage.¹ Under this statute, a sale to a person who is at the time intoxicated, or to a person who is in the habit of getting-intoxicated, is absolutely prohibited, whether to be used as a beverage or not.

The objection that the information is bad for duplicity is well taken. Each sale to a person in the habit of becoming intoxicated is, under our statute, a separate offense, and, as the offense is not of a continuing character, we do not think that the continuando can be rejected as surplusage. State v. Temple, 38 Vt. 37; State v. Pischel, 16 Neb. 490, 608.

The conviction must therefore be set aside, and the respondent discharged.

The other Justices concurred.

1 3 How. Stat. § 2283c6.