The language of the law

You have to love the way the law works.

Okay, okay, so if you’re The Legal Genealogist, you’re gonna love it no matter what — but c’mon, now. Any genealogist has to love the records that get created because of the law.

Like the very first criminal cases to be decided by the Supreme Court of South Dakota after it became a state.

The cases are reported in volume 1 of the South Dakota Reports, the official reporter for the decisions of the South Dakota Supreme Court.¹ The first is State v. Hafsoos, decided by the Court on 10 December 1890.² The second, State v. Butcher, was decided on 18 December of that year.³

Both of them had to do with specific criminal charges involving the horrors of — yep — booze. That evil thing that had been the subject of a specific provision of the very first South Dakota Constitution under which it had been admitted as a state. Yes, indeedy, South Dakota as of day 1 was a dry state — adopting prohibition as Article XXIV of its first constitution by a popular vote of 40,234 to 34,510.⁴

The charge in the Hafsoos case was that the defendant “did sell intoxicating liquors maliciously and wilfully” in the County of Lincoln.⁵ In Butcher, the defendant was charged with keeping and selling liquor at his business in Stanley County.⁶

And in both cases, the defendants walked out, scot free.

Not because they hadn’t done what they were charged with, mind you.

But because of the language of the law.

Or, to be absolutely precise here, because the language of the charging documents didn’t comply in every jot and tittle with the requirements of the law.

In Hafsoos, the Court said that when you stripped out all the inapplicable language of the statute,⁷ the law that did apply to the case made it a crime to “sell any … intoxicating liquors as a beverage.” So charging that the defendant “did sell intoxicating liquors maliciously and wilfully” wasn’t good enough: “Selling liquor maliciously and willfully is not made an offense by such statute, but the offense consists in selling liquors ‘as a beverage.’”⁸

And in Butcher, the prosecuting attorney set out all the facts given to him by the complaining witness including when, where and how the booze was sold, and went on to certify that, “to the best of my information and belief, from said testimony obtained on examination, said laws governing the sale of intoxicating liquors have been and now are being violated.”⁹ Not good enough, said the Court. Why? Because all of the factual allegations were in one paragraph, and the verification on information and belief was in another paragraph.

Now in fairness, before drawing any conclusions about the impact of prohibition on South Dakota’s criminal jurisprudence, I probably should go on and see what other criminal cases were decided in that first term. Let’s see here… State v. Chapman, decided 18 December. Booze.¹⁰

On second thought, maybe I’ll stop there.

Boozy South Dakota… and the price of imprecision, in the language of the law.

Cite/link to this post: Judy G. Russell, “The price of imprecision,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 25 Apr 2022).

SOURCES

Image: Adapted from images by Wikimedia user Awmcphee via CC0; and OpenClipArt user Kevin David Pointon.