People v. Winkler

[134]

SLOSS, J.

The defendant having been convicted of a violation of the local option law (Stats. 1911, p. 599), appeals from the judgment and from an order denying his motion for a new trial.

The indictment charged that the defendant on or about the twentieth day of November, 1914, in the county of Glenn, did “take an order from, sell and deliver, to one M. Hamilton, alcoholic liquor,” within a supervisorial district which was no-license territory.

The defendant demurred to the indictment on the ground that it charged more than one offense, and that the several offenses were not stated in separate counts. (Pen. Code. see. 954.) Section 13 of the act makes it unlawful to “sell, furnish, distribute or give away,” within the boundaries of any no-license territory, any alcoholic liquors, except in certain cases specified in section 16. Section 15 makes it unlawful, within such territory, “to solicit orders, take orders or make agreements for the sale or delivery of alcoholic liquors.” The claim is that the indictment charges a sale under section 13, and also the taking of an order under section 15. It is not necessary to decide whether the offenses described in these sections may properly be joined in a single count. We are satisfied that the indictment did not contain the elements necessary to constitute a charge of “taking an order” under section 15. Three acts are there declared unlawful, i. e., soliciting orders, taking orders or making agreements “for the sale or delivery of alcoholic liquors.” The words “for the sale or delivery,” etc., qualify all three of the acts. The indictment merely charges that the defendant took an order ' from Hamilton, and sold and delivered liquors to him. There is no attempt to allege that he took an order “for the sale or' delivery of liquor.” Since the act does not, in section 13 or elsewhere, prohibit the “delivery” of liquors, the pleading charges nothing more than a sale under section 13, and the case should have been submitted to the jury on the issue of sale alone. The words “taking an order from” may well be treated as surplusage. In this view, the indictment charges but a single offense.

Was the defendant properly convicted of the offense of selling intoxicating liquor within no-lieense territory 1 There is little or no dispute regarding the facts. Winkler conducted a general merchandise store at Hamilton City in Glenn