State v. Finsky

• Decision Date: 14 March 1922
• Citation: 176 Wis. 481,187 N.W. 201
• Parties: STATE v. FINSKY.
• Court: Wisconsin Supreme Court

176 Wis. 481

187 N.W. 201

STATE

v.FINSKY.

Supreme Court of Wisconsin.

March 14, 1922.

Error to Walworth County Court; Aldro Jenks, Judge.

Joseph Finsky was convicted of possessing intoxicating liquor in the building in which he conducted his retail business of selling nonintoxicating beverages, and he brings error. Affirmed.

The defendant was charged in the information of the district attorney before the county court of Walworth county, Hon. Aldro Jenks, county judge, with having in his possession and under his control on the 30th day of March, 1921, in a building occupied by him and situated in the city of Lake Geneva, Walworth county, Wis., in which building he conducted his retail business of selling nonintoxicating beverages, also intoxicating liquors, as defined by section 1569––3 of the Statutes, contrary to the provisions of section 1569––8 of the Statutes. The action was tried before a jury, and the defendant was found guilty, whereupon the court sentenced him to serve a term in the county jail, and to pay a fine, etc. The cause is now before this court on a writ of error sued out by the defendant.Charles S. French and H. A. Burdick, both of Lake Geneva (Jerome J. Foley, of Racine, of counsel), for plaintiff in error.

Wm. J. Morgan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

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

When the information was filed in the county court, the defendant made and filed a motion to quash the same, for the reason that it did not sufficiently charge him with the commission of an offense under the laws of the state of Wisconsin. The refusal of the court to grant defendant's motion constitutes his first assignment of error.

The information is as follows:

“I, Easton Johnson, district attorney for Walworth county, Wis., hereby inform the court: That Joseph Finsky did, on the 30th day of March, A. D. 1921, at said county and state aforesaid, in the city of Lake Geneva, keep and have in his possession for retail sale, nonintoxicating beverages as defined in section 1569––3 of the Wisconsin Statutes, and that the said Joseph Finsky did then and there have in his possession and under his control, in the building occupied by him, situated in the city of Lake Geneva, Walworth county, Wis., in which building he conducts his business of retail and having for sale nonintoxicating beverages, also intoxicating liquors as defined in said section 1569––3, and contrary to the provisions in section 1569––8 of the Wisconsin Statutes, against the peace and dignity of the state of Wisconsin.”

Section 1569––8, Wisconsin Statutes, provides:

“No person who shall keep or have in possession for retail sale nonintoxicating beverages as defined in section 1569––3 hereof shall at any time have in his possession or under his control in the building in which he conducts his business of selling or dispensing any such beverages any intoxicating liquor as defined in said section. The prohibition commissioner or his deputies shall have the right of access at all reasonable hours, without notice, to the premises occupied by any such retail dealer in nonintoxicating beverages, to investigate if this provision is being violated.”

Section 1569––3, Wisconsin Statutes, is as follows:

“Intoxicating liquor, within the purview of said constitutional amendment and the provisions of this act shall be construed to be and include all liquors and drinks of whatsoever name or description, including patent or proprietary medicines, capable of being used as a beverage containing more than two and one–half per centum of alcohol by weight at sixty degrees Fahrenheit. But if the Congress of the United States shall hereafter by a valid act which shall become the law of the land and be paramount to any state laws on the subject, define the words ‘intoxicating liquors' as used in article 18 of the Constitution of the United States, then such definition, from the time such act of Congress becomes operative, shall be the definition thereof under this subdivision.”

Section 4658 of the Statutes provides:

“The information shall be sufficient if it can be understood therefrom: (1) * * * (2) * * * (3) * * * (4) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case.”

[1] The information as above set forth charges the commission of the alleged offense, substantially in the language of the statute. It is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be held for really is. Wharton's Criminal Plead. & Prac. (8th Ed.) § 220; Steuer v. State, 59 Wis. 475, 18 N. W. 433.

[2] The offense charged in plain language consists of the offender having in his possession at his place of business where he is licensed to sell nonintoxicating beverages, prohibited intoxicating beverages. It would therefore appear clearly that the statute creating the offense individuates the same to such an extent that the offender, in the use of the statutory terms contained in the information, can readily determine what the offense really is with which he is charged. In fact, if the language of this statute does not individuate the offense sufficiently, then it is difficult to conceive of language of a statute which does so. It follows, therefore, that, if the language used in the information is sufficiently certain as to convey to the defendant proper notice of the offense with which he is charged, then the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction, according to the rights of the case, as required by subdivision 4 of section 4658, Wis. Stats., above quoted.

[3] It is also claimed by defendant's counsel that the information is defective in that it does not specifically allege that Congress by a valid act defined the words “intoxicating liquor” as used in article 18 of the Constitution of the United States.

The information specifically charges the defendant with having had in his possession and under his control, etc., intoxicating liquors, and expressly refers to the section of the statute which defines intoxicating liquors. The court takes judicial notice not only of the Constitution and statutes of this state, but also of the Constitution and statutes of the United States, and therefore such reference to the statutes not only fully apprises the court with a sufficient degree of certainty of the offense with which the defendant is charged, so as to enable it to pronounce judgment upon a conviction, but also...