Boldt v. State
| Decision Date | 12 May 1888 |
| Parties | BOLDT v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Langlade county.
On rehearing. For former opinion, see 35 N. W. Rep. 936.Neal Brown, for plaintiff in error.
C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for defendant in error.
We will consider the points relied on for a reversal of the judgment in the order in which they appear in the record. The plaintiff in error, defendant below, was convicted before a justice of the peace on a verified complaint of the offense of selling malt and intoxicating liquors without first having obtained a license therefor, and appealed the cause to the circuit court of Langlade county. Before the trial in the circuit court he made and filed an affidavit for a change of venue on the ground of the prejudice of the circuit judge, and the motion for a change of venue was denied. This ruling is the first error assigned here. The right to a change of venue is claimed under section 4680, Rev. St., which provides that any defendant, in an indictment found or information filed, may apply for a change of venue on account of the prejudice of the judge of the court where such indictment is found or information filed, in the manner provided by law for a change of venue in civil cases. The right to a change of venue is purely statutory, (Baker v. State, 56 Wis. 573, 14 N. W. Rep. 719,) and it is clear that this case is not within the letter of the statute. But it is said to be within its spirit, and that the words “indictment or information” are used in the section as descriptive of all cases of criminal prosecution of every kind, and include an appeal in a criminal case from a justice of the peace as well as one on information filed in the circuit court. We do not feel justified in giving the language such a construction. The language is very plain, and it is evident from the whole chapter that the legislature were regulating criminal prosecutions in the circuit court by indictment or information. To say that the provision applied to an appeal from a justice in a criminal case would be amending the statute and pure legislation. In the Baker Case it was decided that this section did not authorize a change of venue in a bastardy proceeding, though that had often been held to be quasi criminal in its nature. It was said in that case that section 4680 limits the right of removal to cases of an information or indictment in a purely criminal case. That ruling is decisive upon the point made here. The counsel for the prosecution was permitted, against the defendant's objection, to examine a number of the jurors called as to their qualifications to sit in the case. The examination was quite extended, and disclosed the fact that these persons had been or were members of a club at Antigo, which, as we infer, was formed for the purpose of obtaining beer to drink, and with which club the defendant was connected in some relation, or had been active in forming. If the examination of these jurors disclosed anything, it tended to warrant the inference that the jurors did not stand indifferent in the case, but might have some bias or partiality in favor of the defendant. They, however, swore that they were not sensible of any bias, and could render a verdict according to the evidence and law given them by the court, and they were permitted to sit in the case. The defendant then objected generally to the jurors, and to the manner of selecting them, and finally challenged the array. We think the objection to the jurors sworn, as well as the challenge to the array, was utterly untenable, and without merit, and was properly overruled by the court. The complaint charged that the defendant did, on the 11th day of June, 1886, unlawfully sell, deal, and traffic in, and, for the purpose of evading the law, did give away, certain spirituous, malt, and intoxicating liquors, without first having obtained a license therefor. On the trial it was objected that no offense was stated in the complaint. That the complaint states an offense under the statute is too plain for argument. It is not bad for duplicity. It is in the language of the statute, (section 4, c. 296, Laws 1885;) and the several acts, stated conjunctively, constitute but one offense, for which there can be but one conviction and punishment. State v. Bielby, 21 Wis. 205;State v. Gummer, 22 Wis. *442;Storrs v. State, 3 Mo. 9;Com. v. Tuttle, 12 Cush. 505.
A witness was sworn who testified to the purchase of beer from the defendant about the 10th day of June, 1886, and then evidence was given, against the defendant's objection, as to sales of beer or liquor by the defendant to other persons made before that time and subsequent to the 10th day of May previous. It is said the prosecution elected to proceed for a sale made on the 10th day of June, and should have been confined to that specific charge. It is admitted that in cases of this kind the prosecution is not bound to prove a sale made on the precise day named in the complaint. Time does not enter into the nature of the defense as it does in some crimes; therefore it is not necessary to prove the offense to have been committed on the day specified in the complaint or information. Proof of a sale made before the day named, within the statute of limitations, is sufficient. In prosecutions for the violation of the excise laws, the state is often compelled to go to trial without being in possession of the evidence as to the precise time or persons to whom liquors are sold; and it would be hardship to confine the prosecution to a sale made on the day charged, excluding evidence of a sale made on some prior day. The authorities do not restrict the proof to the precise day charged. In this case the court allowed evidence of sales made by the defendant on any day between the 10th of May and the 11th day of June, 1886. But proof was also given, against objection, of distinct sales made to different persons between those days. In the former opinion this proof was held to be admissible, but we are not satisfied that this view was correct. Consequently a reargument of the cause was granted. We are now clearly of the opinion that our first view upon this question was unsound, and not in accord with the authorities or well-established principles. We have stated that the defendant was charged with a single violation of the statute in the complaint. Now, if evidence is admitted to prove several distinct offenses, it is apparent it would often work hardship and injustice to the defendant; for, while charged with the commission of but one offense, he might be tried, under such a rule, for...
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