Opinion
November 29, 1911.
William T. Moore, for the appellant.
J.W. Atkinson, for the respondents.
The indictment charged the defendants with a violation of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39] as amd.) by unlawfully selling liquors in quantities less than five gallons at a time to one Raffaele Fortunato and to certain other persons on the 5th day of March in the year 1911, "which said day was Sunday, * * * contrary to the form of the statute in such case made and provided." Each of the defendants interposed a demurrer to the indictment against him upon the ground that it did not sufficiently state the commission of a crime for the reason that there is no allegation showing that the defendants did or did not have a liquor tax certificate. The demurrers were sustained, as appears by the opinion of the county judge, upon the ground that in case of conviction "a different punishment is meted out to the defendant who sells liquor without a license on Sunday than is given to the defendant who sells liquor on Sunday with a license."
We are of the opinion that no defect exists in the indictment by the omission to state whether or not the defendants had a liquor tax certificate. It contains a plain and concise statement of the act constituting the crime charged in the language used in the statute defining it. All the ingredients of the offense are stated with legal certainty and it is plain that proof of the act charged would bring the defendants precisely within it. It was wholly unimportant to allege whether or not the defendants had obtained a liquor tax certificate. Section 30 (as amd. by Laws of 1910, chap. 494), which defines the crime in question, declares, among other things, that it shall not be lawful for any person, whether having paid such tax or not, to sell liquor on Sunday.
Subdivision 2 of section 36 (as amd. by Laws of 1910, chap. 485) provides for the punishment of all offenses created by section 30, except a violation of that section, by a person not holding a liquor tax certificate, the punishment for which is provided in subdivision 1 of section 36, as thus amended. Subdivision 1 prescribes no punishment for selling liquor on Sunday and it is, therefore, clear that the only judgment the court would have the power to pronounce upon convicts would be as prescribed in subdivision 2. It follows that the demurrer to the indictment is not tenable and that the judgment entered thereon should be reversed.
All concurred.
Judgment sustaining demurrers to the indictment reversed and judgment directed to be entered overruling the same and requiring the defendants to further plead.