State v. 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 sec. 1557, R. S., but it is rendered unnecessary by an amendment to that section found in sec. 2, ch. 174, Laws of 1881. See Sanborn & Berryman’s Supp. to R. S., 339. No objection having been made to the amendments, and 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* [481] 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 even for a felony (R. S., 1092, sec. 4658; Hintz v. State, 58 Wis., 493); and no more can be required in a complaint for a mere misdemeanor. R. S., 1106, sec. 4742. We conclude that the complaint is sufficient. The only other question presented by the exceptions is, whether the adjournment from December 24th to the 27th of the same month, conceding it to have been irregular and fatal to the jurisdiction of the municipal court, deprived the circuit court of jurisdiction of the case on appeal. It is understood that the municipal court had only the jurisdiction of a justice of the peace in the-case. It may well be doubted whether the statute which provides that “ on the return of the warrant with the accused, the justice shall proceed to hear, try, and determine the cause within one day, unless continued for cause” (sec. 4744),-is applicable to the adjournment under consideration, for the reason that the case had already been adjourned for one day for cause. It is quite probable that the first adjournment fulfilled the requirements of the statute, and hence that the statute does not govern the procedure on the second adjournment. We choose, however, not to determine that point, but to decide the question on the assumption that the second adjournment was governed by the statute, and therefore irregular. We are conscious, however, that we do so at the risk of being charged in some future case with having indulged in obiter dictum. In Hepler v. State 43 Wis., 479, and Harrington v. [482] State, 50 Wis., 68, it was held that an adjournment bj the justice of a criminal trial beyond one day after the accused was brought before him, unless for cause appearing by the docket entry, ousted the justice of jurisdiction, and that the circuit court obtained no jurisdiction by an appeal. The rule of these cases was greatly shaken in State v. Haas, 52 Wis., 407, and was entirely overturned by the judgment in State v. Tall, 56 Wis., 577. In State v. Haas, the justice rendered an unauthorized judgment which was void. It was held that the circuit court obtained jurisdiction by an appeal. In State v. Tall there was an adjournment for three days, and the case was argued and determined on the assumption that the docket entry failed to show that such adjournment was for cause. It was held, as in the other case, that the circuit court obtained jurisdiction by an appeal. Both of these cases rest upon the principle that if the circuit court, has jurisdiction of the subject matter of the prosecution and the person of the accused it is sufficient. We think the principle is sound and just, and we deem it our duty tO adhere to it. The cases of Hepler and Harrington, in so far as they conflict with the later cases, must, therefore, be considered as overruled. In the present case, the municipal court had jurisdiction of the subject matter of the prosecution, which passed to the circuit court by the appeal, and the appeal by the defendant gave that court jurisdiction of his person. Given, a valid complaint, charging an offense which the municipal court has jurisdiction to hear, try, and determine, a judgment of conviction pronounced by that court, and a regular appeal therefrom by the defendant, the jurisdiction of the circuit court to hear, try, and determine the case, logically and necessarily follows, even though the municipal court may have committed errors which divested its jurisdiction. We find in this case all of these elements of the jurisdiction of the circuit court. [483] Ifc follows from these views that all the exceptions must be overruled. The cause will be remanded with directions to the circuit court to pronounce judgment upon the verdict. By the Court.— Ordered accordingly.