
    STATE, Respondent, v. LAYMON, Appellant.
    (167 N. W. 402.)
    (File No. 4214.
    Opinion filed May 1, 1918.)
    1. Intoxicating Liquors — Sale by Pharmacist — Information, Duplicity In — “Sell and Give” — Statute'.
    An information charging that defendant did “sell and give” intoxicating liquors to the .person named therein, does not charge two separate offenses under Pol. Code, Sec. 2860, as amended by Laws 1907, Ch. 176, making it an offense to “sell” or “give,” etc.; and the information is not bad for duplicity.
    2. Same — Sale by Pharmacist — Sale Regardless of Permit, Sale Not on Prescription — Two Offenses in Same Section — Different Penalties — Statute Construed.
    Rev. Pol. Code 1903, Sec. 2860, as amended by Laws 1907 <Ch. 17 6, defines two separate offenses; in the first -provision, sale as a beverage, regardless of granting permit, and prt^viding punishment for violation of “this section” by fine Of not less than $100 nor more than $300; in the second, sale in any precinct, etc., that has' voted against issuance of permits, except upon prescription, to -be punished for violation of provisions in “this section” by fine not exceeding $100, or imprisonment, or both, etc. Held, that in view of the different penalties thus prescribed, the Legislature meant that the penalty prescribed in the first provision shall apply only to the offense defined in that provision, which is also true of the ■penalty prescribed in the second provision; that by interpolating into each .provision, before the words “this section,” the words “this provision of,” such interpretation harmonizes the various provisions and expresses such legislative intent.
    
      S. Same — Information, Whether Charging Sale Regardless of Permit, or Except on Prescription — Two Offenses Under Same Section — Theory of Evidence and Trial, Effect — Conviction, Whether Supported,
    Under an information containing all elements of the offense defined in the first part of Sec. 2860, Pol. Code, as amended by Laws 1907, Ch. 176, making it unlawful and prescribing a specified penalty for selling intoxicating liquors as a beverage, regardless of granting permits, while containing no element not common to- this and the offense defined by a second provision in said section, held, that, all thei state’s evidence having been aimed at the offense defined in the first provision, and the penalty imposed by trial court being that prescribed for the first named offense,' 'trial having been had on the theory by both parties that the information chargéd that offense, and defendant not claiming that it charged the second offense under said section, viz., that of selling in a -precinct, etc., that has not voted against issuance of permits, except upon prescription, or that he was misled, etc., a conviction under the first provision was non-prejudicial.
    4. Trials — Challenges For Bias Overruled, Peremptory Exercised— No Other Challengeable Jurors, Effect — Error, Whether Reversible.
    Where, at beginning of trial, deirtain veniremen were challenged by defendant for actual bias, the challenges being overruled, and to avoid being tried by jurors he deemed disqualified, he was obliged to and did exercise a peremptory challenge upon each of said veniremen, held, that while if those veniremen were in fact so disqualied, it was- error to overrule the challenges, it does not follow that it was reversible error, since the error, if any, was in compelling exercise of peremptory challenges upon veniremen who- should have been excused for cause, and defendant was not injured thereby, unless it appears that there were other members of the panel upon who-m he wished to exercise peremptory challenges, or w'ould have 'donei so had he not been compelled, to exhaust such challenges uipon veniremen he deemed disqualified. But as no such situation appears, nor that he preferred any other venireman to any one who served as juror, nor that he was prejudiced by the error complained of, it was not reversible.
    5. Evidence' — Witness, Impeachment of Own by Cross-Examina-tion — Unwilling, Hostile, Prevaricating, Witness, as Exception to Rule.
    While the rule that one may not cross-examine or impeach his own witness is well established, yet, where he is unwilling to testify, or hostile to the party calling him, and it is apparent he is not telling, or is concealing, the truth, or his testimony is contrary to statements as to facts, made by him before coming to the stand, or to what he led such party to believe it would bei, it then is within province of trial court to permit such party to cross-examine, or even impeach him; the case for such method of proceeding being determinable in exercise of sound judicial discretion; and unless appearing to have been abused, such discretion will not be disturbed on appeal. So held, in approving such cross-examination of witnesses called by state in a prosecution for unlawful sale of liquor, who testified that liquor purchased by them was for medicinal purposes, and not for use as beverages; their attention being called to -previous affidavits by them in “John Doe" proceedings, claimed to contain differing statements, to refresh their memory, and to test the truth of their statements on the stand; state’s attorney being allowed to cross-examine relative to conflicting statemens.
    
      6. Evidence — Intoxicating liquor — Sales Other Than Charged, Investigation of Premises, Evidence, Whether Error — Rule, Exception.
    While, in trial of criminal charge, evidence of independent offenses other than that charged is inadmissible, an exception to this rule exists where criminal intent must be inferred from facts or circumstances other than the act charged; and as sale of intoxicating liquor at time in question was legal under some circumstances, and unlawfulness of sale depended on intent of accused, it is competent to receive evidence of sales to others not mentioned in information, at or about that time, and to show presence on defendant’s premises of intoxicating liquors in quantities far greater than were probably needed for lawful sales, for purpose of showing he was making a practice of making illegal sales.
    7. Same — Selling liquors — Purchaser’s Testimony — “Rotgut” Por “Medicinal Purposes” — Bad Stomach “Benefited” — Heavy Drink — Sufficiency of Evidence.
    Where the only evidence in substance tending to prove charge of unlawful sale of liquor, was that of a purchaser who testified he called for a “quarter’s worth of rotgut,” that defendant said “yon want it for medical purposes,” or something like that, but, on cross-examination, said he did not remember whether such question was asked, that defendant gave him a four-or-five ounce bottle of whiskey, that he used it for a had feeling stomach and it benefited him, did not like whiskey and did not buy nor drink it as beverage, and could not get whiskey from defendant except for medical purposes; 'but the evidence showed he drank contents of bottle within two or three hours; a verdict of guilty should be allowed to stand against contention of insufficiency of evidence; this evidence being the best of which the case, on trial, was susceptible; guilty knowledge that improper use is to be made of the liquor, not the act of making the sale, constituting gravamen of the offense; and jury might consider all surrounding circumstances; and it not appearing from purchaser’s appearance that he was sick or needed medical assistance.
    Appeal from Circuit Court, Kingsbury County. Hon. Alva E. Taylor, Judge.
    The defendant, Glare S. Layamon, w;ais convicted' of' the ■crime of selling intoxicating liquor to be used as a beverage, and1 ilie appeals.
    Affirmed.
    
      Hall, Alexander & Purdy, for Appellant.
    
      Clarence C. Ccildkuett, Attorney General, and Byron S. Payne, Assistant Attorney Genera!, for Respondent.
    
      (1) To point one of the opinion, Appellant cited: .Bishop i New Criminal Procedure, Sec. 587; State v. PischeR (Neb.) 20 N. W. 848; State v. Mudie, 22 S. D. 41, 115 N; W. '107.
    Respondent -cited: State v. Bradley, 15 S. D. 148, 87 N. W. 950; 23 Cyc. 218; note 99.
    (2) To point two. of the opinion, Appellant cited: 23 Cyc. 220; Baer v. Commonwealth, 10 Bush. (Ky.) 8; Bode v. State, 7 Gill (Md.) 326.
    (4) To point lour off the opinion, Appellant cited: 24 Cyc. 326; People v. Casey, 96 N. Y. 116. '
    
    (5) To point five of the opinion, Appellant cited: State v. Gallaban, 18 S. D. 150, 99 N.. W. 1099; 5 Jones- on Evidence, Sec. 853, Pages 237, 252; Putnam v. United States', 162 U. S. 687, 40 E. Ed. 1118.
    Respondent cited: Jones on Evidence, 2nd Ed., section 854, page 1090; State v. Tall, 43 Minn. 273, 45 N. W. 449 ; George v. Triplett; 5 N. D. 50, 63 N. W. 891; Bullard v. Pearsall, 53 N. Y. 230.
    (6) To point six of'the opinion, Appellant cited: State v. Morton, (S. D.) 162 N. W. 155; 1 Jones Commentaries on Evidence, Sec. 143, page 720; Pnoif. Wiigmioire, 1 Evidence, Sec. 305, page 399; State v. LaMont, 23 S. D. 174, 120 N. W. 1104.
    Respondent cited: State v. Fuliwider, 28 S. D. 622; 3 Russell on Grimes, p. 288; 3 Rice Cr. Evi. pp. 210-11; Wharton ■Grim. Evi. 31; 1 Whoi-eii & Thornton Intox. Eiq., Sees. 505, 930.
   POLLEY, J.

Defendant, a registered pharmacist conducting a drug store in the town of Hetland, was convicted of selling intoxicating liquor to be used as a beverag-e, and ítem a judgment imposing a fine off $200 be appeals.

It is first contended by appellant that the information on which lie was tried chargee two separate offenses, under the statute, .and that therefore -said information is- bad! 'for duplicity. This contention is based upon the fact that the said information charges that, at a specified time and place, defendant did “sell” and “give” intoxicating liquor to the person named 'in said 'information, while the statute (section 2860, Pol. Code, as amended by chapter 176, Laws off 1907) under'which'tine information is dirawn makees it an offense to “sell’” or '“give,” etc. ' This con-

tentioin -is sio fully answered ¡by what is said by this court in State v. Bradley, 15 S. D. 148, 87 N. W. 590, that further discussion, of the proposition is wholly unnecessary.

It is next contended by appelant that the information is insufficient to support a conviction. This contention grows out of a confusion of terms used in section 2860, Revised Political Code of 1903, as amended by chapiter 176, Laws of 1907. This section, as amended), defines two separate and distinct offenses, and attempts to provide a different penalty for each offense. The first provision, in general terms, malees, it unlawful for a registered pharmacist to sell intoxicating liquors to be used as a beverage, without regard foi the granting of permite to sell the same, and1 provides that any pharmacist who sells intoxicating liquor in violation of the provisions of “this' section” shall be punished by a fine of nolt tes® than $100 nor more than $300, etc. The next provision of said section malees it unlawful for a registered pharmacist to sell intoxicating liquors in any precinct, town, or city that has voted against the issuing of permits to sell intoxicating liquors, except upon a prescription of a licensed resident physician, and provides that any pharmacist who, violates the provisions of “this section” shall be punished by a fine of* not to- exeeel $100, or imprisonment, or ’both, etc. Thus, if read literally, the penalty provided by either provision of the sectiolm applies equally to* the offense defined in the other provision. But such an interpretation would, of course, be preposterous. The penalties imposed for the different offenses are radically different. It is very cteair that .the Legislature meant that the penalty prescribed in the first provisiioto of the statute shall aipply to the offense 'defined in that provision, and that offense only. And' the same is true of the penal,ty prescribed' in the second provision. If before the words “this section,” .in each place where they are used, the words “this provision of” were inserted, the meaning of the Legislature would be clear. Thus, by interpolating into, each provision before the words “this section” the phrase “this provision of” so that it would read “this provision of this section,” there would be no Confusion, and the very evident intent of the Legislature, would be dearly expressed. This interpretation harmonizes the various provisions of the said section, and, in our opinion, expresses the intent of the Legislature.

Applying the statute as thus interpreted' to- this case, we find that the information has been drawn under the first of the above enumerated provisions of tire said section. The information contains all the 'elements of this offense, and it contains 00 dement, not common to both offenses, constituting the offense defined 'by the second' provision of the statute. All the evidence on behalf of the state was aJimed at the offense 'defined by the first provision. The penalty imposed by the court is the penalty prescribed for the first-named offense, and is one that could not be imposed1 for the other. The case was tried by both the state and the appellant 00 the theory that appellant was charged with 'the commission of tlhle offense defined in the first ptnovisiioln of the law. No claim is made by appellant that the inftortmiatiioni 'charges the offense defined in the second provision, or that he Was misled or unable to prepare has defense, and we are fully satisfied1 that his rights were in no wise prejudiced.

At tiie beginning of the trial, certain of tine veniremen on the panel were challenged1 by appellant for actual bias, appellant contending that it clearly appeared from the examination ■olf these veniremen on their voir dire that two1 of them had fixed opinions relating to the guilt or innocensie of the appellant and that another was so biased and prejudiced against appellant that be was dearly disqualified' to act as a juror in the case. But these challenges were overruled, and, to avoid being tried by jurors whom be considered disqualified to act in the case, appellant was obliged to and did exercise a peremptory challenge upon each of such veniremen. Appellant contends that the ruling of the trial court in denying bis said challenges for cause Constituted ■reversible error. If the said veniremen were in fact disqualified, because of actual bias, it was error, of course, on the part of the trial' court to overrule the said challenges, but it does net necessarily follow that siu!ch error is reversible. Each of said1 venliemen was excused by appellant on peremptory challenge, and the real error, If there was erro'r, consisted in compelling the appellant to exercise Shiis peremptory challenges upon veniremen who should have been excused for ¡cause. It is not necessary to determine whether the said veniremen were 'disqualified to act as! jurors or not, 'because, not having 'served -upon the'jury, of course the ¡appellant was not injured by the overruling of his challenges not by being compelledto exercise his peremptory challenges upon isiaid veniremen, unless it appears that there were other members Of Ithe panel upon whom hie wished to. ex-eroLsle his peremptory challenges, or upon whom he would have exercised his peremptory challenges had he not been compelled to exhaust such challenges upon tlhe veniremen whom he considered were-disqualified! to act in the case. But appellant does not contend that there was any one otn the jury whíotn he wished to exercise a peremptory challenge, or upon whom he would have exercised such ’challenge tod he been, permitted' to. do so, nor that there whs any one ora the jury to whom he had 'any objection, nor that he preferred any other member olf ¡the panel toi any one who served as a juror, nolr that he was in any wisie prejudiced by the errors complained of. So far ais appears from the record, the personnel of the jury was exactly ¡the satae as it would have been had appellant’s challenges for cause been 'allowed by ¡the court. This being the case, under the wed-established rule of this 'court, siu'dh error is riot reversible.

It is contended by appellant that the trial court permitted the state to. cross>-examine and in part to impeach its own witnesses. That in so doing the well-established1 rule that a party cannot cross-examine or impeach his own witnesses was’ violated, and that appellant’s rights were prejudiced thereby. There i& no doubt that the rule is correctly stated by appellant, but it is not an invariable rule toi be adhered to in all cases and under all ckoum-stances. Where a¡ witness is unwilling tO' testify or is hostile to the party calling him to the-stand, and1 -it is1 'apparent that he is not telling the ruth or is concealing the truth1, or where his testimony is contrary to statements, purporting to he facts, made by him before he went upon the stand, or ¡is contrary to what he has led' the party placing him upon the stand -to believe it would be, then, in order to ascertain the truth, it is within the province of the trial court to permit the party placing' such witness upon the stand to. cross-examine suioh Witness1, or even to impeach him. But wtot constitutes a proper case for' proceeding in this manner is 'to be determined by the trial Court in the exercise of sound1 judicial discretion, and, unless it appears that such- dislcrebioo has been abused by the trial court, the course pursued by it will not be disturbed' by this court. In this case, tibe witnesses were called to the stand to prove that appellant hadi been making’ a practice of selling intoxicating- liquor in violation of law. Each testified tihait he had made purchases himself, but in each case testified1 that the liquor so purchased! by him had been purchased for medicinal purposes, and not to be usdd as a beverage. It appeared1 tihait some time before tibe trial certain proceedings, known as “John Doe” proceedings, bad been had, wherein these 'same, witnesses had been examined and had sworn to certain statements relative to' sales of intoxicating liquor made by appellant. It was clalkmed by the state’s attorney that the testimony of these witnesses' while on the stand differed materially frota statements made ,by them in the said .affidavits; and, for itihie ¡purpose of refreshing the recollection of such witnesses feunld testing the truth, of their testimony, their attention was called to Said affidavits', and the sítate’® 'attorney was permitted to teros®-examine them relative to the conflicting statements- so1 made. We believe tire facts as above shown bring the case within tire exception' to .tine well-established! rule, anid! that tiñere was mo albusie of 'discretion by the trial court in permitting such cross-examination.

At the .trial tine court, Over appellant’® objection, permitted tine prosecution to show that, prior to amid 'about the time of the sale upon which this prosecution is biased, appellant had made Safes of intoxicating liquicir that the state claims were illegal, to a oomisiderahle number of parities other than time party named in time information, and also permitted the state to show that an investigation of appellant’s premises, about (the time of tine said sfafe, disclosed the presence of intoxicating liquors) of various kinfds, in quantities far greater than would have been, carried, or could probably have been sold, for lawful purposes. The admission Off this evidence, appellant contends, constitutes reversible error..

Tire rule is well establisheed that, in a trial upon a criminal charge, 'evidence of independent offenses other than that 'charged in th!e «formation is not admissible, but there is am exception to this mule in cases where the criminal intent must be inferred from facts or circumstance® other than the act constituting the offense charged fa tire information. In most criminal1 cases, such' ¿s' larceny or forgery, for instance, tire orimlimal 'intent may be inferred, from the act constituting- the offense. But imastmi,chas 'the sale of intoxicating liquor at (that time was legal under some 'Circumstances and1 whether such sale was unlawful in any-given case,-depended upon the intent of the accused parity at the time of (the sale, it is competent for the court to reoeive evidence tending to show (that defendant was malting a practice of selling intoxicating liquors ■illegally, and 'that -he had in his possession intoxicating ‘liquors in greater quantities than oould probably be disposed -of for legal purposes, and there was no error in the admission of the -evidence complained of.

It is further contended by appellant that the evidence is not sufficient to support the verdict. The -only evidence tending to prove the -sale -charged- in the information is the testimony of the -purchaser. He (testified that, upon the -occasion in question, he went into appellant’s store and asked for a “quarter’s worth of rotgut”; that something was said about what (he wanted it for; that defendant said, “ ‘You -want it tf-oir medicinal purposes ?’ Or something like that.” But, on cross-examination he said that he did not remember (whether defendant asked him if it was fori medical purposes or not; that defendant gave him a small- bottle of whiskey, about four or five ounces. He also testified1 that he Was bothered with -a stomach trouble at the time of such purchase, a bad feeling ‘in his stomach; ‘that he used the whiskey for such- trouble, and that it benefited him. He said he- did not like 'whiskey, and that he did- not buy it to use as a beverage, and that he -did not drink it - merely as a beverage. He also testified that he never bought whiskey except for medical purposes, ‘and- that he could not get whiskey from defendant for either 'than medical purposes, but the -evidence shows- that he drank all ‘there was in the -bottle within two Or three 'hours after he purchased it.

This is all of the direct -evidence, and it is contended by appellant that such evidence tends to support his theory rather than that of itihe state. With this .contention we cannot agree. The ■evidence is the best, in the absence of a plea o(f -guilty, of which the case is susceptible. It must be borne in -mind that it is the guilty knowledge that /an improper usie is toi be made of the intoxliaatinig liiqiuo-r in question, and not -the act of making the sale, that 'constitutes the gravamen df the offense; and, in arriving at a ooooluigion., tíre jury w'as 'wanrantecF in taking info' consideration all tine cirduimislbances sur.riauinidling foe transaction. In this connection foie .conduct of foe purdiasar ait foe time of foe purchase is of importance. The fedfc that he ashed for a “quarter’s worth of E'otguit” may have indicated to¡ ¡the jiutny folat he was not acting i.n good faith when he said he wanted foe whiskey for medicinal use. There does not appear to have been 'anything about foe uirdhaser’s appearance indidating that he was sick or in need of medicinal assistance. The fact that appellant took no steps to ascertain that the purchaser wanted it for medicinal purposes other than ¡the remark, “You want it for medicinal purposes?” if indeed he said that much, is a siigbifioainit circumstance. The further fact that the purchaser consumed foe entire 'contents of foie battle, though it may not have exceeded four or five 'ounces, within ;a daupile of hours after he purchased it tends to impeaah his testimony to foie effeat that be wlanted the whiskey for medicinal (purposes. These are all matters' foiat were properly taken into eoinsid'eraltkm by the j'uiry, anld, if from1 these facts and all foe circumstances surrounding foe case, foe jury ware convinced of appellant’s guilt, foie verdict should be allowed to¡ stand.

The judgment and order appealed from are. affirmed.  