105 Mich. 75 | Mich. | 1895
This is a prosecution for a violation of section 31 of the liquor law, being section 22834, 3 How. Stat. This section provides that—
“During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all cur-tains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, 'alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed. Any person who shall violate any of the provisions of this section shall, upon conviction thereof, be punished as provided in section 7 of this act.”
1. The information charged that the respondent, on the 2d day of April, 1894, that being election day,—
“Was proprietor of and kept a saloon where intoxicating liquors were sold at retail in a room in the rear of the office of the Sherman House Hotel, on Hubbard street, in the village of Allegan; that on said last-mentioned date, that being a day when, by the provisions of Act No. 318, Laws of 1887, said saloon was required to be closed, the curtains, screens, partitions, and other things that obstructed the view, from the sidewalk and street and alley in front of and at the side of the building in which said saloon was, of the bar and place in said room where said liquors were sold and kept for sale, were not removed; but, on the contrary thereof, the said William Kennedy did then and there, as aforesaid, obstruct the view from said sidewalk, street, and alley in front of and at the side of the building in which said saloon and room were, by not removing said curtains, screens, partitions, and other things that then and there obstructed the view from the street, sidewalk, and alley in front of and at the side of the building in which said saloon was then situated; contrary,” etc.
It is said that this information is substantially in the same form as the complaint set out in Robison v. Haug, 71 Mich. 38, and of which Mr. Justice Campbell said: “The complaint in question is not a good one.” The majority of the Court in that case did not pass upon the sufficiency of the complaint, and it is true that Mr. Justice Campbell did not deem the complaint a good one, but for what reason is not stated in the opinion. The complaint differs in some particulars from the information in question, and we cannot regard that case as controlling. It is a general rule that in a prosecution under a statute it is sufficient to charge the commission of .the offense in the language of the stat
2. The reason alleged why the proofs were insufficient is- that the testimony tended to show that the alley, the view from which was obstructed, was not a public place, but private ground, and it is contended that the Legislature meant by the word “alley” a public alley, similar to a public street, and not a private passageway. The evidence tended to show that the alley, the view from which was obstructed, had been in use by the public for more than 20 years; that during all that time no person was ever denied the right to travel over'it on foot or with teams. • It was used daily, and extensively; and there was testimony to the effect that on some days as many as 250 teams and persons passed ovet it.- The circuit judge charged the jury as follows: ' '
*79 “Now, so far as this alley is concerned, gentlemen, I have charged you that it need not be a dedicated or public alley, but if you shall find from the evidence beyond a reasonable doubt that it is used by people whoever desire to use it, that people in general do use it when they want to, and you find it to be an alley under this evidence, that is a sufficient compliance with this statute that these screens shall not obscure the view from the alleys or the streets or the sidewalks. The object of this law, gentlemen, is that the officers of the town, and not only that, but that every person in town, — it is the privilege of every man or woman in the town passing along any street or sidewalk or alley, where they have a right to be, that they shall-have an unobscured and unobstructed view into a saloon through the windows, if there are windows, so as to see whether -or not the business is being carried on contrary to law. That is the object of it.”
We think this instruction sufficiently guarded the rights- of the respondent. The purpose of the statute is very clearly stated by the learned circuit judge, and under this instruction the respondent could not have been found guilty of the offense, unless the jury were satisfied beyond a reasonable doubt that it was a public alley in the sense that it had been thrown open to the public for general use. We think it is not incumbent upon the prosecution on the trial of a case of this character to show the dedication of the street or alley, but that it is sufficient if the fact appear that it is at the time open to the use of the general public.
The conviction will be affirmed, and the circuit judge directed to proceed to judgment.
