State v. Dale

3 Wis. 795 | Wis. | 1854

By the Court,

Whit ox, O. J.

We do not see how the conviction in this case can be sustained.

The statute in relation to the sale of intoxicating liquor, in force at the time when the offence charged against the defendant, is alleged to have been com- ‘ mitted, (Sess. Laws of 1851, § 5, 7,) provided that “upon complaint being made to any justice of the peace, by any person that he knows, or has good reason to believe that [an] offence against this act, or any violation thereof, has been committed, he shall examine the complainant upon oath, and he shall reduce such complaint to writing, and. cause the same to be subscribed by the party complaining. And if it shall appear to such justice that there is reasonable cause to believe that such offence has been committed, he shall immediately issue his warrant, reciting therein the substance of such complaint, and requiring the officer to whom such warrant shall be directed, forthwith to arrest the accused, and bring him before such justice, to be dealt with according to law; and the same warrant may require the officer to summon such persons as shall be therein named, to appear at the trial to give evidence.”

It will be seen that the complaint in this case does not follow the statute, and we think the deviation from it is so great as to make the complaint insufficient to be the foundation of legal proceedings. The statute dispenses with the necessity of a distinct charge against the person accused, of a violation of it, and authorizes the arrest of the defendant, if the complainant will declare upon oath that he has “good reason to believe” that an offence has been committed. The complainant in this ease, swears that he “ has been credibly informed,” &c. This might have been true, and yet the complainant might not have believed the information, nor have had any good reason for believing that an offence had been committed. Some person entitled to credit, might have given bim |the information, and circumstances within his own knowledge, might have satisfied him that the informer was mistaken. In such a case, he would have been credibly informed that an ®ffenee had been committed, and yet would have liad no good reason for believing it. The statute authorizes the arrest of a person without a direct charge of a violation of law, and we are not disposed to extend it by construction.

If a citizen can be deprived of his liberty without having a direct charge of guilt preferred against him, the statute which authorizes his arrest without such a charge, should be strictly followed.

The judgment must therefore be arrested.