17 Wis. 26 | Wis. | 1863
By the Court,
Tbe plaintiff in error was prosecuted by tbe city of Milwaukee for an alleged breach of one of tbe ordinances of tbe city. Tbe complaint stated tbat it was for a violation of tbe third section of an ordinance of tbe city entitled “ Rules and Regulations passed October 22d, 1855.” Tbe complaint was demurred to because it was indefinite and uncertain; did not state facts sufficient to constitute a crime; did not set forth a cause of action; and because tbe facts were not definitely set forth. Tbe demurrer was overruled. Tbe municipal court struck and empannelied a jury of six to try
The third section of the ordinance reads as follows : “Any person who shall be found intoxicated in the city of Milwaukee, or who shall be guilty of any indecent exposure of his person, or who shall make use of any vulgar or obscene language, or who shall make use of any loud, boisterous or insulting language, tending to excite a breach óf the peace, or who shall be guilty of any disorderly conduct in said city of Milwaukee, shall forfeit a penalty of not less than one nor more than twenty-five dollars.”
It will be seen that this ordinance provides for the punishment of five distinct offenses, and it is utterly impossible to determine from the complaint with which one the party was charged. Was it for being intoxicated ? Or for an indecent exposure of his person ? Or for making use of vulgar and obscene language? Or for loud and boisterous language tending to a breach of the peace ? Or was it for disorderly conduct ? It is impossible to say which. Suppose he should be tried and convicted upon this complaint, could he plead that conviction in bar of a second prosecution ? Obviously not, since it would not .appear from the record for what offense he had been tried in the prior action. Now it is an elementary rule of criminal law, that not only must all the facts and circumstances which constitute the offense be stated in an indictment, but they must be stated with such certainty and precision that the defendant may be enabled to judge whether they constitute an indictable offense or not, in
The decision of this question renders it unnecessary to decide the other point made upon the argument, namely, that a person arraigned for the commission of such an offense in the municipal court of Milwaukee, is entitled to be tried by a jury of twelve; and we express no opinion upon it.
The judgment of the municipal court of Milwaukee is reversed.