State v. Tall

56 Wis. 577 | Wis. | 1883

Oetoít, J.

This case comes to this court upon exceptions summarily settled and allowed by the circuit court. The complaint was for selling and giving away intoxicating liquors, without first having obtained a license therefor, and was first tried before a justice of the peace, and then on appeal in the circuit court. In the circuit court the case was tried de novo, and if the justice had jurisdiction of the subject matter, and of the defendant’s person, and rendered judgment wholly unauthorized by law, and void for that reason, an appeal by the defendant from such judgment nevertheless gives the circuit court jurisdiction. State v. Haas, 52 Wis., 407. The exceptions, therefore, in respect to alleged errors' and irregularities in the proceedings before the justice, even to the extent of divesting him of jurisdiction to try the case, are immaterial and will not be considered. Only such questions as affected the jurisdiction of the circuit court, and are raised by errors and irregularities in that court, will be considered and decided.

1. The complaint stated the facts, “as this deponent is creditably informed and verily believes,” without stating, as in the statute, that the deponent “ had good reason to believe.” The defect of tlie complaint in State v. Dale, 3 Wis., 795, was that it stated that the deponent “ has been credibly informed,” without stating that “ he verily believed,” or that he had good reason" to believe, the charge made. The statement in this complaint that the deponent “ has been creditably informed and verily believes,” is stronger than the statute requires. That “ he has been creditably informed ” is stronger than that he “ has good reason to believe,” and includes it.- The good reason is specified and stated, instead of the mere conclusion.

2. The two offenses of selling and giving away are charged, but the last one only is directly followed by the conclusion “ against the peace and dignity of the state.” This formula, if essential, is necessary only in criminal informations, and even in such cases it is sufficient if it follow the last count. Nichols v. State, 35 Wis., 308.

3. It is not stated that the liquor was sold or given away without first having obtained a license therefor according to the provisions of chapter 66 of the revised statutes. The license which had not been obtained was ,not stated, whether from the state, city, or village, or the United States. We think it was clearly implied that no license had been first obtained according to the requirement of the chapter creating the offense; and in Allen v. State, 5 Wis., 329, where the indictment charged the selling of liquors “ without first having obtained a license therefor according to law,” the allegation was equally indefinite, and yet it was held sufficient; and the same view was, in effect, stated in State v. Downer, 21 Wis., 274

4. The warrant states the offense as being charged in the complaint positively and on actual knowledge, instead of on creditable information and belief. The statute requires only the substance of the complaint to be recited in the warrant. Sec. 1551, R. S. This was no part of the substance of the complaint, for it was immaterial to the defendant whether the charge was made in tbe one form or the other, so far as notice to him of it was concerned, for he was equally bound to answer it, whether in the one form or the other. This disposes of all the exceptions adversely to the defendant.

By the Court.— The exceptions are overruled, and the cause remanded with direction to proceed according to law.