66 Wis. 339 | Wis. | 1886
The plaintiff in error, defendant below, was prosecuted under sec. 4398, E. S., for using, in reference to
Several errors are relied on here for a reversal of the judgment. ¥e shall only consider the one which relates to the sufficiency of the complaint, and tvhich is raised several times upon the record. We think, notwithstanding the various amendments made to the complaint as above detailed, it was fatally defective at last, and will not sustain the conviction. It is strenuously objected that the court improperly permitted the amendments to be made after the defendant moved that the prosecution be dismissed, and after the motion for a new trial was overruled. We shall express no opinion as to the propriety of allowing or directing the amendments to be made at the time and in the manner they were made. The defendant resisted them constantly, claiming that he had the right to know the nature of the accusation made against him before he was called upon to answer it. But, assuming that the amendments, under the circumstances, were properly allowed, still we are clear that the complaint entirely failed to state an offense under the section. Doubtless the abusive or obscene words were inserted in the original complaint to meet the ruling in Steuer v. State, 59 Wis. 472. It was there decided that a complaint, to be good as charging an offense under this section, should set out the language used, so that the court can determine, as a question of law, whether or not an offense has been committed under it. But the fatal defect in the complaint in this case is that it is not charged therein that the abusive or obscene language in reference to Yictoria Ihne was addressed to her, or used in her presence, or was used in the presence of the complainant and his wife, or either of them, though it is alleged that it was used about her in the presence of others; that is to say, in the presence
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss-the complaint and discharge the defendant.