Boldt v. State

• Decision Date: 10 January 1888
• Citation: 72 Wis. 7,35 N.W. 935
• Parties: BOLDT v. STATE.
• Court: Wisconsin Supreme Court

72 Wis. 7

35 N.W. 935

BOLDT

v.STATE.

Supreme Court of Wisconsin.

January 10, 1888.

Error to circuit court, Langlade county.

Prosecution under Laws Wis. 1885, c. 296, for selling intoxicating liquors without a license. The plaintiff in error, Henry Boldt, was convicted, and, a new trial having been refused, took this writ; assigning as error, inter alia, certain remarks of the prosecuting attorney in his address to the jury, and part of the charge of the trial judge. The remarks of counsel for the state objected to were these: “If there is a disagreement in this case, it may go to indicate that when a gentleman spoke of a Dutchman it had some weight.”“If Boldt cannot be convicted, the evidence is not strong enough to convict; if it was an angel from heaven, he could not be convicted, even though twelve demons sat upon the jury to try him. He says he never tampered with the jury; he never talked with a juryman, he never talked with any juror, about this case,--about my case.” The part of the charge referred to was as follows: “Now, gentlemen of the jury, this has been quite a peculiar case, and in some respects one of the most peculiar I have witnessed in this state or elsewhere, and I have witnessed trials in a number of states. The testimony on the part of the state tends to prove that about the eleventh day of June last, and previous to that time for some time, the defendant had been engaged in vending beer and rock and rye, which the testimony tends to prove is ardent and intoxicating liquor, in the house that he occupies in this city and county and state, at retail and by the glass and by the bottle, as well as in other ways. There is no pretense on his part that he had a license for that at all; in fact, he testified himself that he did make sales. He says he made them to what is called a ‘beer club,’ organized for the purpose of enabling the members of that club to procure beer for their own consumption. He got it for them on their order, and dealt it out to them in small quantities by the bottle and by the glass, and took pay for that, and also took pay, as he says, for the attention and delivery of the beer. He also states that the members of that club had arranged to defend him if he was called in account for it in the courts,--to bear the expense of litigation; and it was intimated, or found on examination, that some of you are members of a club of that description, and yet you have said you are impartial, and you would find a verdict, if the proof was that he had sold liquor, and the court charged that to sell it to a club, or members of a club, of that description, was a violation of the law. I never heard of a case of that description in my experience, where a number of men on the jury had been suffered to remain on the jury, if it is true that they belong to a club of that description. The arrangement was that they were to contribute towards defraying litigation--expenses of litigation--that was carried on, if any was carried on, by the state against the party that was furnishing liquor or anything else for the club. It is a new thing in my experience, and I don't know what to think about it.”

Neal Brown and L. A. Pradt, ( Bardeen, Mylrea & Marchetti, of counsel,) for plaintiff in error.

C. E. Estabrook, Atty. Gen., for the State.

COLE, C. J.

We shall 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 actions. 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...