Jansen v. State

• Decision Date: 15 May 1884
• Citation: 19 N.W. 374,60 Wis. 577
• Parties: JANSEN v. STATE.
• Court: Wisconsin Supreme Court

60 Wis. 577

19 N.W. 374

JANSEN

v.STATE.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from circuit court, Racine county.S. & A. S. Richie, for plaintiff in error, Christian Jansen.

H. W. Chynoweth, Asst. Atty. Gen., for defendant in error, the State of Wisconsin.

TAYLOR, J.

The plaintiff in error was arrested upon a warrant issued by a justice of the peace upon the following complaint:

“ Racine County, City of Racine--In Justice Court: W. A. Wells, of said county, being duly sworn and examined on oath by and before Clarence Snyder, a justice of the peace of said county, makes complaint and says that Christian Jansen did, on the second day of September, A. D. 1883, at the city of Racine, in said county, sell intoxicating liquor the said second day of September, A. D. 1883, being the first day of the week, commonly called Sunday, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin, and prays that the said Christian Jansen may be arrested and dealt with according to law.

+----------------------+
                ¦[Signed]¦W. A. WELLS. ¦
                +----------------------+
                

Subscribed and sworn to before me this fourth day of September, 1883.

CLARENCE SNYDER, Justice of the Peace.”

Upon the trial before the justice the defendant moved the court to dismiss the complaint on the ground that it did not charge him with any offense. The objection was overruled and defendant convicted. He then appealed to the circuit court. In that court he renewed his objections to the sufficiency of the complaint, his objections were again overruled and exceptions were properly taken. Upon trial he was again convicted in that court. Upon the hearing in this court the plaintiff assigns as error that the complaint is insufficient, and does not set out any offense under the laws of this state. It is not claimed by the attorney general that the complaint relates an offense unless it states an offense either under section 1564 or section 4595, Rev. St. 1878. By a well-established rule of pleading in criminal actions, the complaint was insufficient to charge an offense under said section 4595, because it does not negative the exception in the statute, viz., that the selling of the intoxicating liquor, as stated in the complaint, was not “a work of necessity or charity.” The allegation in the complaint is the simple statement that the accused sold intoxicating liquor on Sunday, without setting out any of the circumstances under which the sale was made, or the person or persons to whom sold. The allegations of the complaint would have been fully proved by evidence showing that a druggist had sold the liquor upon the prescription of a physician, or that it was sold under any other circumstances which would take the sale out of both the letter and spirit of the section above quoted. Such a complaint is clearly insufficient. See 1 Bish. Crim. Proc. § 636; State v. Barker, 18 Vt. 195;Com. v. Maxwell, 2 Pick. 139;Elkins v. State, 13 Ga. 435; Howe v. State, 10 Ind. 423;Brutton v. State, 4 Ind. 601;Kinser v. State, 9 Ind. 543;Mehan v. State, 7 Wis. 670;State v. Downer, 21 Wis. 274.

It only remains to inquire whether the complaint is sufficient to charge an offense under section 1564, Rev. St. This section reads as follows: “If any tavern keeper or other person shall sell, give away, or barter any intoxicating liquors on the first day of the week, commonly called Sunday, or on the day of the annual town meeting, or the annual fall election, such tavern keeper or other person so offending shall be deemed guilty of a misdemeanor,” etc. In order to give a proper construction to this section of the statute, it is necessary to trace its history, and learn, if we can, the evils which were intended to be remedied or at least modified by its enactment. This section was first enacted as a law of this state as chapter 115, Laws 1859, and was amended so as to assume the shape in which it now remains as section 1564, Rev. St. 1878, by chapter 278, Laws 1861. As first enacted, it prohibited the sale of intoxicating liquors on election or town meeting days “at the place of” such elections or town meetings, and simply imposed a fine of not exceeding five dollars. In 1861 it was amended by chapter 278, Laws 1861, to read as it now does. At the time chapter 115, Laws 1859, was enacted, and when it was amended in 1861, section 5, c. 35, Rev. St. 1858, provided for the punishment of any person who should vend, sell, or in any way deal or traffic in, or, for the purpose of evading said chapter, give away, any spirituous, ardent, or intoxicating liquors or drinks in any quantity whatsoever, without first having obtained a license therefor according to the provisions of said chapter, by a fine not less than ten nor more than forty dollars, and costs of suit, or by imprisonment in the county jail for the space of 60 days, unless the fine, costs, and jail fees were sooner paid. This section also declared the offense a misdemeanor. Section 5, c. 183, Rev. St. 1858, is substantially the same as section 4595, Rev. St. 1878, except that the punishment for the offense was limited to a fine not exceeding two dollars for each offense, instead of ten dollars, as prescribed by said section 4595. Before and at the time section 1564 was enacted in its present form, in 1861, no person was authorized by law to sell intoxicating liquors either on election day, town-meeting day, or on Sundays, unless he had first obtained a license under the provisions of chapter 35, Rev. St. 1858; and every person who sold intoxicating liquors on either of said days, not having obtained a...