State v. Bielby, 21 Wis. 204

State v. Bielby

21 Wis. 204 | Wis. | 1866

Lead Opinion

Dixon, C. J.

Section 5 of the [excise law (R. S., ch. 35) declares that if any person shall vend, sell, or in any way deal or traffic in, or, for the purpose of evading this chapter, give, away, any spirituous, ardent, or intoxicating liquors or drinks in any quantity whatsoever, without first having obtained license therefor according to the provisions of this chapter, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine or imprisonment as therein provided. Section 6 provides that justices of the peace shall have power to hold a court to hear, try and determine all offenses against or growing out of the provisions of the chapter, and arising within their respective counties. Section 7, that upon complaint made to any justice of the peace by any person, that he knows, or has good reason to believe, that an offense against this chapter, or any violation thereof, has been committed, he shall examine the complainant on oath, reduce the complaint to writing, and cause the same to be subscribed by the complainant; and if it shall appear to such justice that there is reasonable cause to believe that such offense has been committed, he shall immediately issue his warrant, &c., for the apprehension of the person accused. The complaint in this case is in the words of the statute, charging that the defendant did vend, sell, deal and traffic in, and give away, spirituous and intoxicating liquors and drinks, namely, rum, gin, brandy, &c., in quantities less than one gill, without having first obtained a license therefor according to law ; except that the giving away is not charged to have been for the purpose of evading the law.

It is objected that the complaint is bad for duplicity, because the several acts named in the statute, if charged separately, would each constitute a distinct offense. This may be so, but *207still the complaint is not double. An indictment in such case may pursue the language of the statute, charging the commission of the several acts conjunctively and as constituting, all together, one offense ; in which case there can be but one conviction and one punishment, as for one offense. See State v. Byrne, 12 Wis., 526, and authorities there cited.

It is also objected that the complaint is bad because the giving away is not charged to have been for the purpose of evading the law. As a distinct charge of the offense of giving away, the complaint would no doubt be bad; but as it is coupled with other charges which are properly made, and which, if proved, constitute an offense, that -part of the complaint may be rejected as surplusage. If an indictment be uncertain as to some particulars only, and certain as to the rest, it is void only as to those which are uncertainly expressed, and good for the residue. This is a general principle applicable to all indictments, and indeed to every description of pleadings, upon the maxim, utile per inutile non vitiatur. People v. Adams, 17 Wend., 476; 13 Pick., 359; 9 Met., 569.

Again, it is objected that the complaint is insufficient, because it does not specify the name of the person to whom the liquors were sold. This is unnecessary. The offense complained of works no injury upon the individual rights of the person to whom the sale was made, and none are supposed to be violated; and hence the designation of such person by name is in no way material to constitute the offense. People v. Adams, supra; State v. Munger, 15 Vt., 290.

The complaint is likewise made upon the belief of the complainant. It is “that he has good reason to believe.” This is expressly authorized by section 7 of the law. But it is urged that this provision is unconstitutional, because it authorizes the arrest and detention of the citizen without its being shown that he is guilty of any offense. It often becomes necessary, in the administration of justice to criminals, to arrest and detain *208persons in custody upon suspicion of crime more or less well founded, and without any certain or conclusive proof of their guilt. Our laws against crime could not well be enforced if this were not so, and the occasional arrest and detention of an innocent person is one of the inconveniences which must be submitted to for the sake of the greater benefits arising to the community at large from a more certain and thorough administration of the criminal law. The validity of a provision like this in the excise law of 1851, was recognized by this court in The State v. Dale, 3 Wis., 795. Inasmuch as it only authorizes the arrest and bringing of the person accused before the magistrate, on such a complaint, where the proof must be made, we are of opinion that the statute is valid.

Cole, J. concurred.

Dissenting Opinion

Downer, J.

I dissent from so much of the opinon of the chief justice as holds that the complaint is not bad for duplicity.

By the Court. — We affirm the conviction, and remand the case to the court below, advising that court to pronounce the judgment required by law.