(dissenting). I do not question the sufficiency of the information as stating a crime, if the act charged was done 'by the accused -himself. The majority opinion assumes that the assignments of error present but three propositions: First, the admission of certain testimony; second, insufficiency of the ‘ evi-*358clence -to 'sustain the verdict; third, improper remarks of the state’s attorney.
I think, however, the order overruling defendant’s motion for a new trial -presents an additional question, viz., whether on -the whole record the accused' has had a fair and impartial trial, the right to which is guaranteed to him hy the Constitution. The question here cannot he properly disposed of by sajun-g that certain facts were competent under the rules of evidence, or that they -did not constitute a fatal variance. Clearly, as stated in the majority opinion, evidence showing -criminal acts to have been committed through an agent may be competent evidence and sufficient to sustain a conviction. But the constitutional rule that a criminal pleading must inform the accused of the cause and nature of the accusation presents a question entirely different from the rule as to competency of evidence or the rule as to what constitutes a fatal variance. The Constitution requires that an indictment or information shall contain such allegations as are necessary to inform the accused of the 'cause and nature of the accusation against 'him,' and this provision has 'been correctly construed by this court as equivalent, to a -requirement that the information or indictment state facts necessary and 'sufficient to enable the accused to prepare his defense.
In State v. Burchard, 4 S. D. 548, 57 N. W. 491, in an opinion-by Corson, J., this -court said:
“The necessity of so identifying a criminal charge in other classes of cases -as -to- enable the accused to know- the cause and nature of the accusation against him, that he m-ay intelligently prepare for his defense, to enable the trial court to know that the accused is being- -tried for the offense for which he has 'been indicted by the girand jury, and to enable the accused to plead his convictio-n or acquittal upon another indictment for the same offense, has been so- long re-cognized that any -departure from it would moit be seriously urged in an appellate court. Why, then, should an exception be made in the cla-ss of -cases of which the case at bar is one? We know of no- reason for -such exception. All persons when charged with -crime, of whatever nature, are equally entitled to the protection of the -Constitution, and to invoice the safeguards those provisions have guaranteed to- them for their protection.”
*359Ancl this rule was approved by this court in Kotilinic v. Swenson, 18 S. D. 196-202, 99 N. W. 1114.
The majority opinion suggests that the statute informs the defendant that 'he is liable for the acts of his agents who assist him in engaging in the unlawful business of selling intoxicating liquors, that under this statute the acts of his agents may 'be given in evidence against him, and that he must -be prepared to meet such evidence.
The attempted 'distinction -between the -crime of selling intoxicating liquors and engaging in the business of selling such liquors is wholly specious. The accused may sell intoxicating liquors by his agent, or he may engage in the business of selling intoxicating liquors through his agents, and become criminally liable in either case. In either case-the statute -declares a rule of criminal liability, hut does not furnish a rule of -pleading. Upon a proper pleading* evidence tending to show that -he had sold intoxicating* liqju'ors by his agent, or engaged in the business of selling intoxicating liquors by his agent, would plainly be competent. But, first -of -all, he must 'be given, by the pleading’ itself, knowledge of the facts necessary to enable him to prepare -a defense. It does not meet the question here to say that the a'ccu-sed at the trial may be permitted to -show by >way of defense that persons whose-names he may never have heard until they were -disclosed on the witness stand did not engage in the 'business of selling intoxicating liquors, or were not his authorized agents. The principle announced in the majority opinion would be little -different shoul-d the court hold in a murder case that the accused might 'be charged and convicted of -the -crime, without naming the persons murdered. It cannot be -said that one who is himself charged with selling intoxicating* liquors has imputed knowledge that the state intends to show 'by its evidence that, in fact, the accused himself did not, but that -some unheard- of person did the -act as his agent, and that bjr such- allegation he should be 'held to have been given all the information neces-sary -to prepare his defense. Certainly the accused cannot be held to be in a -position- when his alleged agents- are first named a,t the trial to- prove that -such persons theretofore unknown -to him -did' not, as his agents, engage in the business of selling intoxicating* liquors, or that such persons, unnamed, were not his agents. Ntor would- surprise, ais a *360ground fioc continuance of the cause, meet the case. If the pleading was in proper form, there could be no such surprise as would give the legal right to a continuance merely 'because, as held by the majority opinion, the state had introduced evidence competent and proper under the allegations of the pleading. In such case there could be no surprise as a legal fact, because the accused would have been compelled1 to anticipate such evidence and be ready to meet it. The very presumption of innocence acquits the accused of any such knowledge as would be necessary to enable him to anticipate such proof in the absence of any allegation in the pleading. If the presumption was that he was guilty of the crime, he might be presumed to he ready to meet such a case, and ithe rule adopted by the majority falls but little short of adopting a presumption of guilt in this class of cases. In my judgment, it is a plain violation of the constitutional right to a fair trial, and I cannot consent -to it in this or any other case in which such a rule may be sought to be applied; for assuredly such cases will arise to trouble this court at some time.