29 Wis. 327 | Wis. | 1871
Tbis was a complaint under section five of tbe excise law, now found as cb. 147, Laws of 1862-, (1 Taylor’s Statutes, ch, 35, § 5, p. 730), instituted before a justice of tbe peace of Winnebago county, and taken thence by appeal to tbe county court of tbat county, where, after conviction, and a motion in arrest of judgment, wbicb was overruled, tbe defendant, now plaintiff in error, took bis bill of exceptions and sued out tbis writ. It is only necessary to consider tbe first point made in tbe court below, in support of tbe motion in arrest, wbicb was, tbat the complaint charged no offense known to tbe laws. We are of opinion that tbis objection was well taken, and should have been sustained. Tbe complaint is fatally defective in respect to tbat certainty required in criminal pleading, even in cases of misdemeanor, so tbat tbe defendant ought not to have been held to trial (bis motion to quasb having been improperly overruled), and so also, tbat no judgment could be pronounced against him after verdict for tbe state.
But disjunctive allegations in such cases are not allowed; the only exception being where the word “ or ” is used in the sense of “ to wit,” that is, in explanation of what precedes, and making it signify the same thing. In the latter instance a complaint or indictment which adopts the words of the statute, is well framed. Brown v. Commonwealth, 8 Mass., 59; The State v. Gilbert, 13 Vt., 647; Commonwealth v. Grey, 2 Gray., 502. Within this exception would fall the word “ or ” in the statute, and in this complaint, as used between the words “ deal ” and “ traffic in,” these last words being synonymous, or meaning the same thing. But it is not so with the “ or ” occurring in the expression “spirituous or intoxicating liquors,” and again “ ale and beer or wine.” Spirituous liquor and intoxicating liquor are not the same, and the word “ intoxicating ” is hot used in the statute in mere explanation of the word “ spirituous,” but is intended to signify something different,
And the reason of the rule which condemns this uncertainty of pleading is obvious. The accused is entitled to know certainly with what offense he is charged, and especially is he entitled to have' the offense so charged that upon acquittal or conviction he may plead the same in bar of a subsequent prosecution for the same offense, and establish his plea by production of the former record. Upon such rambling, disjunctive and ambiguous statement, charging that the defendant committed one offense or another, but none with certainty, the record would establish nothing whatever in his favor. If separately so charged, at the choice of the prosecution, the statute under consideration creates several distinct offenses as the vending, dealing in, or giving away with unlawful intent, of any spirituous or ardent liquors or drinks, or the vending, dealing in, or giving away with like intent, of any intoxicating liquors or drinks; and should the defendant in a case like the present, be subsequently complained against for the commission of any one of these six several offenses, stated by itself, or of all of them, each being separately stated in different counts or complaints, or the whole alleged conjunctively, and any one or all of them should be the identical offense or offenses of which he was formerly convicted, it would, nevertheless, be impossible for him to protect himself by pleading and producing the first record. It is not so, however, where the several acts specified in the statute are charged conjunctively, or the word “ and ” instead of
By the Court. — The judgment is reversed, and the cause remanded with directions that the motion in arrest be granted.