58 Wis. 46 | Wis. | 1883
1. It is urged as error that the justice of the peace in Portage had no jurisdiction to try Hepler for the offense alleged, upon the complaint of the chairman of the board of supervisors of the town of Wyocena, for selling intoxicating liquors therein without a license, and hence that the circuit court got no jurisdiction. Counsel seems to think that sec. 1553, R. S., as amended by sec. 3, ch. 322, Laws of 1882, confines jurisdiction in such cases, and upon such a complaint, to some justice of the peace in the town where such supervisor resides and such offense was committed. But such we do not understand to be the purpose of the section. It merely makes it the duty of the officials therein named to make complaint as therein designated. The confusion arises from an inadvertent use of the word “ therein,” instead of the words “ of the county.” It does not attempt to give justices of the peace in the particular town exclusive jurisdiction, nor take away from other justices of the peace in the county the power and jurisdiction conferred upon them by statute throughout their respective counties. Sec. 4139, R. S. Nor do we think that the duty imposed upon the supervisors of the town to make complaint “ to a proper justice of the peace therein,” precluded the chairman of the board in question from exercising his rights as a citizen, and making such complaint to some justice of the
2. It is urged that the judgment rendered by the circuit •court is indefinite, uncertain, and contrary to the law, as declared in sec. 1550, R. S., as amended by sec. 1, ch. 322, Raws of 1882, and sec. 4633, R. S., as amended by ch. 72, Raws of 1881. The contention is that the commitment ¡should have been for a time certain, instead of being until .such fine and costs are paid, not exceeding in all sixty days. It is very plain, however, that the commitment was strictly in harmony with the statutes cited. The prisoner could "terminate the imprisonment at any time within the period limited by making payment. The precise time when he would make the payment, or whether he made it at all, was wholly optional with him. Being optional with him, it was for him and not the court to make it certain by actual payment. The time within which he was limited to make the payment did not transcend the time fixed by the statute, •and hence he has no cause of complaint on that ground. There % nothing in this view in conflict with any of the ■cases which are cited by counsel, as they are clearly distinguishable.
3. It is urged as error that the court wholly failed to instruct the jury as to the law applicable to the case. But no instructions were requested, notwithstanding counsel were
4. Counsel urge that the burden of proving that the liquor drank was intoxicating, was upon the state, and that the proof adduced was insufficient. That question, however, has just been fully determined by this court in Briffitt v. State, ante, p. 39, in which an opinion is filed herewith, and to which there is nothing to be added. Besides, the evidence in this case tended to show that the liquor drank was intoxicating.
5. The chairman of the town board of supervisors, on his direct examination in behalf of the state, was asked: “ Question. State whether that board has granted any licenses for the sale of intoxicating liquors since that time? Objected to as not the best evidence, being a matter of record. Objection overruled. Defendant excepted. Answer. The}'' have not.” The time referred to in the question was April 11, 1882. Was this admission of oral testimony to prove want of license error? Mr. Wharton has so recently and carefully collated the authorities upon the subject that reference to them need not be here repeated. He says: “As a general rule, a license to do a particular thing, when a purely extrinsic defense, is to be proved by the defendant by a preponderance of proof. Whether a license is so extrinsic depends upon the concrete case. When the nonexistence of the license is not averred in the indictment, and when the license is particularly within the knowledge of the party holding it, the burden is on him to produce such license in all cases in which the existence of the license is in question. On the other hand, when the non-existence of the license is averred' in the indictment, and is essential to the case of the prosecution, it is proper, if we follow the rules already announced, to hold that non-license must be proved by the party to whose case such proof is essential.” Whart.
Among the cases so cited is Mehan v. State, 7 Wis., 670, where it was held that on a trial for selling intoxicating liquors without license the prosecution must produce presumptive evidence, at least, that the defendant had no license, and that the defendant was not bound to prove affirmatively, in the first instance, that he had license. That decision in our own court must be followed, notwithstanding there are cases to the contrary. See, also, 1 Greenl. on Ev., §§ 78-80. Just what kind of proof the state was bound to make, however, does not there appear. As to that, Mr. Wharton says: “ But when the prosecution has the burden of proving the negative, full proof is not required, but even vague proof, or such as renders the existence of the negative probable is in some cases sufficient to change the burden to the other party.” Whart. Grim. Ev., § 342. Most of this quotation, however, is taken from the opinion of Mr. Justice SheldoN in Beardstown v. Virginia, 76 Ill., 44. That case involved the want of qualification in electors, and the language actually used was, “ full and conclusive proof,” etc., “ is not required.” Quite similar to this is the language of the supreme court of Missouri in State v. Hirsch, 45 Mo., 431, and State v. Richeson, id., 575.
In Comm. v. Thurlow, 24 Pick., 374, Chief Justice Shaw, in a case like the present, said: “ The county commissioners have a clerk, and are required by law to keep a record, or memorandum in writing, of their acts, including the granting of licenses. This proof is equally accessible to both parties.
In Comm. v. Kimball, 7 Met., 304, the prosecution produced a book which it contended was the book in which were recorded all licenses granted by the county commissioners, and also the docket kept by them, but neither contained anything indicating the granting of any license to the accused. The book of general records, however, was not produced, for the reason given that it had not been written up for the period in question. It was held, however, that the docket and minutes of the commissioners, before their records were made up, were competent evidence for the government; and that as no license to the defendant appeared on such docket or minutes, it was prima faoie evidence that he had not been licensed. Certainly such original entry and minutes were as good as, if not better than, a subsequent transcript of them. O'Mally v. McGinn, 53 Wis., 353.
In Williams v. East India Co., 3 East, 192, -the defendant company was charged with wrongfully, unlawfully, and unjustly causing to be put on board the plaintiff’s ship, while in the service of the defendant, a jar of certain oil and varnish of a combustible and inflammable nature, without giving notice thereof to the chief mate of the ship, or to any other person or persons concerned or employed in the navigation thereof, by reason 'whereof such combustible material became ignited and set fire to the ship, which, with the cargo, was destroyed, and for which damages were claimed. It was proved on the trial that neither the captain nor second mate had any notice or knowledge of the nature or presence of the combustible material. The chief mate having died, no evidence was given as to what passed between him and the conductor of the military stores of the
Here the license could only be granted by the supervisors sitting as a town board. Sec. 1548, R. S., as amended by sec. 10, ch. 322, Laws of 1882. The same section provides that such licenses, when granted, shall be attested by the town clerk and not delivered until the applicant produce to him a receipt showing the payment to the treasurer of the sum required, and the filing with the clerk the bond provided for. The statute also makes it the duty of the town clerk “ to act as clerk of the town board; to keep and record faithful minutes of their proceedings, and to enter at length every note, order, direction, resolution, or regulation made by the board or by the supervisors in their official capacity, and to file all accounts audited by the board, or allowed at town meeting, and enter a statement thereof in
It is true, if no application for license was ever made by Hepler, then there could be no record in relation to such fact. But a production of the book or memorandum where the entry of such license would have been made, had one been granted, would prima facie have disproved the existence of such license. Assuming the absence from the record of any entry respecting such license, yet that did not excuse the state from producing the book or memorandum. Such non-license 'could only be proved, against objection on the part of the accused, by the best evidence available to the state. The absence of such entry in such record would be presumptive proof that no fact existed which would have authorized the entry. The best evidence, therefore, was, manifestly, the book in which such records, minutes, or entries would have been kept by the clerk.
The allowance of parol evidence, whenever it is claimed
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The sheriff of Columbia county will take and hold the prisoner in custody until he gives the requisite bail, or is otherwise discharged according to law.