State v. Hofer

164 N.W. 79, 39 S.D. 281, 1917 S.D. LEXIS 149

Opinion

GATES, P. J.

Defendant was convicted under an information charging him with the crime of unlawfully engaging in the business of selling intoxicating liquors. From the judgment and order denying a new trial he appeals.

Appellant assigns as error the overruling of an objection to the introduction of any evidence for the reason that the information was insufficient to charge a public offense or to apprise him of the nature and the cause of the accusation against him. It is not pointed out in appellant’s brief wherein the information was defective. The information is in the form which has been repeatedly sustained by this court as sufficient. State v. Williams, 11 S. D. 64, 75 N. W. 815; State v. McIlvenna, 21 S. D. 489, 113 N. W. 878; State v. Mudie, 22 S. D. 41, 115 N. W. 107; State v. Ely, 22 S. D. 487, 118 N. W. 687, 18 Ann. Cas. 92; State v. Hays, 38 S. D. 546, 162 N. W. 311; State v. Otto, 38 S. D. 353, 161 N. W. 340.

[1] Under an assignment of error that the verdict was contrary to the law, appellant attempts to present the point that because he was a pharmacist he should have been proceeded against, if at all, for violation of the provisions of section 2860, Pol. 'Code as amended, instead of under the provisions of section 2838, Pol. Code. The verdict was in accordance with the law of the case as laid down by the instructions of the court to the jury. The verdict was therefore not contrary to law. Gagnier v. City of Fargo, 12 N. D. 219, 96 N. W. 841; Hayne, New Trial and App. (Rev. Ed.) § 99.

[2] Under an assignment urging error in the instructions to the jury, appellant presented the point last referred to. By the provisions of chapter 280, Laws 1913, section 257, C. 'O. P., is applicable to exceptions to instructions in a crimnal case. That section requires that exceptions to instructions be taken before judgment. Inasmuch as appellant’s exceptions were not taken until long after the entry of judgment and no extension of time therefor was granted, he cannot now be heard to complain of the instructions.

Finally the evidence was sufficient to sustain the verdict. Although denied by appellant, two persons testified to the purchase of intoxicating liquor at his pharmacy from him or his clerk.

The judgment and order appealed from are affirmed.