95 Mich. 212 | Mich. | 1893
The respondent was convicted of a violation of the provision of the liquor law which prohibits sales of liquor by druggists to be drank on the premises. He assigns three grounds of error:
1. That the information was insufficient.
2. That the complaining witness was not sworn on the examination.
3. That the court erred in refusing to charge as requested • by his second request, as .follows: “From the evidence in*214 this case it appears that the man Shoemaker Avent to the village of Stockbridge for the purpose of getting the respondent to commit the offense charged in this cause, and I charge you that he cannot be inveigled into committing an offense, and I direct you to acquit.'’5
“At the village of Stockbridge, in said county, being then and there a druggist and person whose business consists in whole or in part of the sale of drugs and medicines, did then and there sell, furnish, and deliver a quantity of spirituous liquor, called ‘brandy,5 to wit, three drinks of brandy, to one Clinton D. Shoemaker, to be used as a beverage, which said brandy was then and there drank on the' premises of said Orrin Curtis by said Shoemaker, William H. Simpson, and one Ellsworth, contrary to the form of the statute,55 etc.
This information was sufficient. All the statutory conditions which by 3 How. Stat. § 2283c6, are declared to constitute the offense are set out. It is claimed that the information should show negatively that the respondent was not licensed to keep a saloon under other sections of the statute. The rule of pleading, however, in either civil or criminal cases, does not require this. Attorney General v. Bank, Walk. Ch. 90; Myers v. Carr, 12 Mich. 63; Lynch v. People, 16 Id. 472; People v. Phippin, 70 Id. 6; Com. v. Hart, 11 Cush. 134. The rule is that in pleading a statute which contains an exception in the enacting clause the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party.
“ The magistrate before whom any person is brought upon a charge of having committed an offense, and not cognizable by a justice of the peace, shall proceed as soon as may be to examine the complainant, and the witnesses*215 in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offense charged.”
We think this statute is directory as to the quantity of testimony to be taken. If it be given too literal a construction, then, in any case where there are no witnesses ■ other than the complainant, the respondent cannot be held; so, if the complainant should die after the complaint, the proceedings must abate. What is intended by the language quoted is that the justice shall receive such testimony from the complainant and his witnesses as may be offered, and act upon it.
One other point is discussed in the brief of respondent's ■counsel. When the witness Ellsworth was on the stand- he was asked, “ Did you have any trouble about getting your pay for your services that day?”’ These services consisted in driving the man Shoemaker from Mason over to Stock-bridge, the place where the liquors in question were sold. This was followed by the question as to whether the witness had to bring suit to recover his pay, and he testified that he did bring suit against Mr. Prosser, the prosecuting attorney, but this testimony was stricken out. It is contended that if this testimony had been allowed to stand it would have tended to. show that the man Ells-' worth was in the employ of the prosecuting attorney, and by inference that Shoemaker was acting under his directions in inducing the respondent to commit the offense charged. There was no error in the ruling. It was not sought to show by Ellsworth who in fact employed him, nor would the testimony offered have been competent to prove the fact that the prosecutor had any part in the employment of Shoemaker.
The conviction is affirmed.
See People v. Pendleton, 79 Mich. 317.