Sires v. State

73 Wis. 251 | Wis. | 1888

Cassoday, J.

There is no bill of exceptions. This being so, we are necessarily limited to the inquiry whether the complaint, of which the substance is stated above, charges the accused with the offense of selling intoxicating liquors without a license, under the statutes. Secs. 1, 4, ch. 296, Law’s of 1885.¹ The complaint is silent as to the quantity of such liquors sold or given away. The able counsel for the accused very plausibly argues that the complaint does not allege any want of a license to sell or give away such liquors “ to be drank on the premises,” but only the want of any such license or permit to sell or give away such liquors “ not to be drank on the premises.” lie therefore insists that as a matter of fact, and for aught that appears in this complaint, the accused did have such license at the time to sell such liquors in quantities less than a gallon, “to be drank on the premises,” and that such license gave him the absolute right to sell or give away such limited quantity, even though he knew at the time that such purchaser or donee did not intend to drink, and did not drink, the same until after he had taken it away from the premises; otherwise it is suggested that such sales in such limited quantities “ not to be drank on the premises,” would be unauthorized by any licensee except pharmacists, under sec. 2, ch. 296, Laws of 1885, and sec. 1, ch. 404, Laws of 1887. Assuming, for the purposes of this case, such to be the true construction of the complaint and the statute, and hence that the words of the statute, “to be drank on the premises,” are used in connection with the license for the sale in such smaller quantities merety in contradistinction to the license for such sale in such larger quantities “ not to be drank on the premises,” then it necessarily follows that the aliegation of the complaint in the words “ without having obtained a license or permit therefor,” does negative the having of any such license to sell in such smaller quantities. In other words, under such construction, the allegations of the complaint are to the effect that the sale or gift was made “ without having obtained a license or permit therefor,” even though it consisted of the smaller quantity, and equally so if it consisted of the larger quantity.

The statute merely requires an information to charge the offense with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case. Sec. 4658, R. S.; Hintz v. State, 58 Wis. 497; State v. Boncher, 59 Wis. 481. Ho judgment is to be reversed by reason of any defect or imperfection in matters of form which do not tend to the prejudice of the accused. Sec. 4659, R. S. Even in England, where the forms of criminal procedure are far more stringently enforced than here, it has been held, in effect, that an indictment so defective that it would have been quashed upon application before verdict, may nevertheless be cured after verdict. Queen v. Stroulger, 17 Q. B. Div. 327. The' complaint in question was certainly good after verdict. The absence of any bill of exceptions is a confession that all the allegations of the complaint were sustained by the evidence. If the accused was in fact authorized to do what he did by virtue of any license, then it should have been made to appear by bill of exceptions.

Error is assigned because the bond given on appeal from the justice was in the form used in civil cases, and not, as required by secs. 4714, 4717, R. S. But the accused could appeal, and the circuit court take jurisdiction, without any bond. His liability would be the same in any event. Ho supposed grievances of the surety alone can be considered on this writ of error by the accused alone. If the surety bad well-founded grievances, the law gave him a remedy, not only in the trial court, but also in this court. State v. Brady, 62 Wis. 129. The judgment against the accused is not in excess of the authority given by the statute. Sec. 4, ch. 296, Laws of 1885.

By the Court.— The judgment of the circuit court is affirmed.