State v. Hochgraber , 49 S.D. 463 ( 1926 )

GATES, P. J.

Defendant was convicted of selling intoxicating liquor. He appeals from the judgment and order denying new trial.

The evidence on behalf of the prosecution tends to show that one Olson was arrested by the police at Aberdeen while in the act of transferring two pints of alcohol from his pockets to the hood of an automobile. Upon being quizzed by the police he told them that he got the alcohol from defendant. As a witness in this case Olson testified that on the afternoon of April 17, 1924, he met defendant in the latter’s auto shop in Aberdeen and asked him if he could get a gallon of alcohol. He was told to return later. At 7 o’clock he returned, and was told to meet defendant on the road south of Melgaard Park about 7:30. Shortly after 7:30 defendant arrived at the appointed place, took the gallon can of alcohol out of the front seat of his car and handed it to Olson, who was waiting in an auto, and Olson paid him $16 therefor. Olson returned to his room and divided it into pint bottles, which he distributed to friends who had helped pay for it. Defendant testified that he was not out of his shop from 6:30 till after 10 p. m., did not see Olson during that time of that day, and did not sell him any alcohol ’ or intoxicating liquor. Witness Wood testified he was in the shop from 6:30 till xo minutes after 9, that Olson did not come there, and that defendant did not leave the shop during that period.

Defendant complains of the overruling of objections to the following questions asked Olson:

“Why did you put it in eight bottles?”

“What do you mean by that?”

“Harkin has asked you about a conversation at the time you were at the police station when you told him about Mr. Hochgraber. Was Mr. Hochgraber mentioned by you in connection with this at the suggestion of the officer or your own suggestion?

We find nothing prejudicial to defendant in the rulings.

Defendant- complains of an instruction given, and a requested instruction refused, relating to. the interest of Olson in the matter, but the court by its general instructions covered the points sought to be raised.

Defendant complains that the evidence is insufficient to sustain the verdict, in that Olson was not corroborated. That phase of the case rested with the jury. It was a question of the credibility of Olson on the one hand and defendant and Wood on the other. It is further urged that the evidence is insufficient to sustain the verdict, because the information, in • addition, to the allegation as to the sale of the acohol, charged that “said alcohol was then and there capable of being used as a beverage.” These words wiere surplusage. According to the definitions found in section 10237, Rev. Code 1919, the words “capable of being used as a beverage” relate to the preceding words “mixture or compound,” and do not relate to the antecedent word “alcohol.”

The judgment, and order appealed from are affirmed'.