State v. Faull

• Citation: 178 Wis. 66,189 N.W. 274
• Parties: STATE v. FAULL.
• Decision Date: 08 July 1922
• Court: United States State Supreme Court of Wisconsin

178 Wis. 66

189 N.W. 274

STATE

v.FAULL.

Supreme Court of Wisconsin.

July 8, 1922.

Error to Circuit Court, Iowa County; S. E. Smalley, Judge.

Glenn Faull was convicted of illegal sale of intoxicating liquor, and he brings error. Reversed and remanded, with instructions.

Plaintiff in error, hereinafter called the defendant, was arrested upon a warrant issued by a justice of the peace charging him with having on the 18th day of July, 1921, sold intoxicating liquors to one Joseph Gribble, contrary to the provisions of chapter 441 of the Laws of 1921. Upon the preliminary examination Gribble testified that he purchased one-half pint of alcohol from the defendant on the 17th day of July. One Howard Rule also testified that he bought alcohol from the defendant on July 18th. This testimony was not in any way related to the sale to Gribble. It seems to have been introduced as an independent, separate, and distinct transaction.

The defendant was bound over to the circuit court, where the district attorney filed an information against him containing two counts, the first charging him with the sale to Gribble on the 17th of July, and the second with the sale to Rule on the 18th of July.

After the jury was impaneled the defendant moved to quash the information, for the reason that it contained two counts specifically alleging two separate and distinct offenses. This motion was overruled by the court. The defendant then moved that the district attorney be required to elect upon which count he would proceed, which motion was also overruled. The jury returned a verdict finding the defendant guilty upon both counts. The court imposed a sentence of two months in the county jail under the first count, adjudged that the conviction under the second count constituted a second and subsequent offense under chapter 441 of the Laws of 1921, and sentenced the defendant to two months in the county jail and imposed a fine of $250 under such second count. To review such sentence and judgment the defendant sued out this writ of error.McGeever & McGeever, of Dodgeville, for plaintiff in error.

Wm. J. Morgan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and R. T. Jackson, Dist. Atty., of Mineral Point, for the State.

OWEN, J. (after stating the facts as above).

[1] The defendant contends that the two counts were improperly joined. Subsection 27 of section 1 of chapter 441 of the Laws of 1921, under which defendant was prosecuted, specifically provides that--

“In any affidavit, complaint, information, or indictment for the violation of this chapter, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed.”

If there were any doubt as to whether two or more misdemeanors growing out of distinct and separate transactions could be joined in one information independent of statutory authorization, this provision of the statute would seem to settle the question, although it was said in Boldt v. State, 72 Wis. 16, 38 N. W. 180, quoting from 1 Bish. Crim. Proced. §§ 448, 452, that--

“Two or more misdemeanors growing out of separate and distinct transactions may, according to the doctrine which appears to prevail everywhere, be joined in the same indictment when embraced in different counts.”

The court properly overruled the motion to quash, and for the same reason properly overruled the motion to compel the district attorney to elect upon which count he would proceed.

[2] It is suggested in defendant's brief that no preliminary examination was had upon the second count. This is true. The complaint charged the sale to Gribble. Upon the preliminary examination one Howard Rule was permitted to testify that he purchased alcohol from the defendant on a different day, and as a separate and distinct transaction. This evidence had no relation whatever to the offense charged in the complaint. It was inadmissible. Fossdahl v. State, 89 Wis. 482, 62 N. W. 185. While the district attorney may file an information against the accused for any offense which the evidence taken upon the examination shows that he has committed (State v. Leicham, 41 Wis. 565; Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. Rep. 954;Dahlgren v. State, 163 Wis. 141, 157 N. W. 531;O'Keefe v. State [Wis.] 187 N. W. 656), it has never been held that a preliminary examination can be used for the purposes of a fishing expedition to enable the district attorney to discover what offenses the accused may have committed wholly unrelated to the transaction constituting the offense with which he is charged.

[3] Where a given transaction may constitute two or more offenses, the district attorney may frame his information so as to meet the varying aspects of the evidence, and charge one or all of the offenses which he believes the evidence may establish, whether or not it be the offense charged in the complaint. We find the rule well stated in State v. Fields, 70 Kan. 395, 78 Pac. 834:

“The prosecutor, in preparing the information, may use many counts, varying in them the formal and nonessential matters of the crime. He may not add a new offense. To larceny he may not add robbery; nor to murder arson. Neither may he add to the larceny of one piece of property, the larceny of another. He may not substitute one offense for another; but he may, by several counts, guard against the contingencies of the...