State v. Boncher

• Decision Date: 29 January 1884
• Citation: 59 Wis. 477,18 N.W. 335
• Parties: STATE v. BONCHER.
• Court: Wisconsin Supreme Court

59 Wis. 477

18 N.W. 335

STATE

v.BONCHER.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Exceptions to circuit court of Marathon county.

The defendant was prosecuted in the municipal court for Marathon county for selling liquors to minors, and was convicted. He appealed to the circuit court and a trial in that court also resulted in a conviction. The cause comes to this court on exceptions, summarily settled and allowed by the court pursuant to the statute. The complaint (omitting formal parts) was, in the first instance, as follows: “D. C. Barnett, being duly sworn, says that on the first day of December, A. D. 1882, at said county, Louis Boncher, being there the keeper of a saloon in the city of Wausau, Marathon county, Wisconsin, did sell, vend, and give away [any spirituous, ardent, or] intoxicating or malt liquor or drinks, to Sherman McConky and Walter Mosher, who being minors, and the said Louis Boncher, [having good reason to believe them to be such.] After the return of the warrant the record shows an adjournment, on motion of the defendant, from December 23, 1882, to the next day, at 1 o'clock P. M., for the purpose of procuring the attendance of witnesses. In the afternoon of December 24th, which was Saturday, the case was again adjourned until Tuesday, December 27th, at 8 o'clock, A. M. No cause is stated for the last adjournment, and it does not appear on whose motion it was granted. On the 27th the trial in the municipal court proceeded, and before any witness had been sworn the court allowed the complaint to be amended by striking out the words in brackets in the above copy thereto. No objection was interposed to these amendments. Indeed, the accused formally pleaded to the complaint after the words “any spirituous, ardent, or” had been stricken therefrom, although he had pleaded thereto before such amendment was made. In the municipal court the defendant objected to the admission of any testimony under the complaint, for the reason that it does not charge an offense. When the cause was called for trial in the circuit court he moved to dismiss it for the same reason, and the further reason that the municipal court lost jurisdiction thereof by the adjournment from December 24th to December 27th. The motion was overruled, and was renewed after verdict on the same grounds and again overruled. The exceptions to be determined are to the rulings of the circuit court upon these motions.L. F. Frisby, Atty. Gen., for plaintiff, the state of Wisconsin.

Neal Brown, for defendant, Louis Boncher.

LYON, J.

The first question for determination raised by the exceptions is, does the complaint charge a criminal offense? The complaint was amended in two particulars, without objection. After the first amendment was made, the defendant pleaded de novo to the amended complaint. That amendment strikes out the words “any spirituous, ardent or.” The other amendment striking out the words, “having good reason to believe them to be such,” was entirely immaterial. It was of no importance whether those words were retained or stricken out. The averment was probably necessary under section 1557, Rev. St. p. 469, but it is rendered unnecessary by an amendment to that section found in Laws 1881, c. 174, § 2. See Sanborn & Berryman's Supp. to Rev. St. 339. No objection having been made to the amendment, the defendant having pleaded to the complaint, as it was after the first and only material amendment had been made, we think the amendments were effectual, and that the words thus stricken out are not in the complaint.

Two objections are urged to the sufficiency of the amended complaint. These are (1) that it charges in the disjunctive the selling, etc., of “intoxicating or malt liquors;” and (2) it is not sufficiently averred that the persons to whom the same were sold were minors. The answer to the first objection is that the word “or” is manifestly there used to explain the kind of intoxicating liquors sold, to-wit, malt, as distinguished from ardent or spirituous liquors. Under the amended complaint it would have been error to allow testimony of a sale of any other than malt liquors. When used in this sense the disjunctive form of expression is permissible. It was so held in Clifford v. State, 29 Wis. 327, and several cases are cited to the proposition in the opinion by Chief Justice DIXON, (page 329.) We think this objection to the sufficiency of the complaint cannot be sustained. Neither do we think the other objection thereto is well taken. The complaint alleges that the persons therein named, to whom the defendant sold liquors, “who being minors.” This is an awkward mode of averring their minority. Had the word “they” been employed instead of “who,” there could be no doubt of the sufficiency of the averment. Yet, under the averment as it is, we think the fact and the offense is set forth with a sufficient degree of certainty to enable the court “to pronounce judgment upon a conviction according to the right of the case.” This is all that is required in an information...