Brown v. The State

• Decision Date: 01 July 1884
• Citation: 21 N.W. 454,16 Neb. 658
• Parties: DOMINICK BROWN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

21 N.W. 454

16 Neb. 658

DOMINICK BROWN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1884

ERROR to the district court for Lancaster county. Tried below before POUND, J.

AFFIRMED.

D. G Courtnay and J. E. Philpot, for plaintiff in error.

Isaac Powers, Jr., Attorney General (A. C. Ricketts with him), for the State.

OPINION

REESE, J.

This cause originated in the county court of Lancaster county where a complaint was filed charging plaintiff in error with selling intoxicating liquors on the first day of the week commonly called Sunday. The complaint charged, "that on or about the 17th day of February, 1884, at the county of Lancaster, and state of Nebraska, that being the first day of the week, commonly called Sunday," the defendant "then and there did wickedly, willfully, and unlawfully sell," to the parties named in the complaint "beer and whisky, the same being malt and spirituous liquors."

The defendant filed a motion to quash the complaint, assigning two reasons or grounds for the motion: First. That the complaint was not sworn to positively; and Second. That the time of the committing of the offense was not sufficiently stated. This motion was overruled by the county judge, and on a trial the defendant was convicted. He then took the case to the district court on error, where the decision of the county judge was affirmed, and he brings the case to this court on error for review.

The record shows that in the concluding part of the complaint the following language occurs: "And this deponent says he verily believes" the defendant to be guilty of the facts charged. Upon this, it is claimed that the complaint is not sworn to in the positive form, and is therefore insufficient. This objection might have force were it not for the fact that in the charging part of the complaint it is positively stated that at the time and place alleged, the defendant "then and there did," etc., sell the liquors named in the complaint. The objectionable language was simply redundant matter, which could in no way affect the body of the complaint or work any prejudice to the plaintiff in error.

The next point urged by the plaintiff in error is, we think, equally untenable. It is to be observed that the charge made by the complaint is for selling the liquors "on the first day of the week commonly called Sunday," which is prohibited by section fourteen of the liquor law of the state. The essential ingredient as to time is, that the act charged as constituting the crime was committed on the particular day named in the statute, to-wit "the first day of the week commonly called Sunday." This charge is fully set out in the complaint. While it is indefinitely alleged to be "on or about" the date named, yet it is definitely charged to have been on the particular day designated by the statute. This was equivalent to charging the act to have...