State v. Nerbovig

Gilpillan, C. J. There is nothing in the point that the complaint charges two offences. It charges the selling only of beer, which it describes as either “a fermented or malt liquor.” Only one act is charged. And it sufficiently charges that it was without license. It alleges the act to have been done without having first obtained a license therefor from the county commissioners, which could not be true if he had obtained a license from the hoard of county commissioners. The allegation necessarily negatives a license from the board, and perhaps goes beyond that. It appears that the justice examined the complainant on oath within the meaning of the statute. If the complainant presents a written complaint showing an offence by the person charged, and makes oath to it before the justice, that is a sufficient examination to authorize the issuing of the warrant. The absence from the county of the county attorney when the defendant was arraigned was good cause to continue the case for a reasonable time, and in this case the time was not unreasonable. We do not understand that the continuance was granted before the affidavit for it was made, but that, on the motion being made, the justice announced that it would be granted on ah affidavit being made alleging the grounds stated in the application. The docket entries [482] are a little confused; but it appears that the justice required an affidavit, and the inference is a fair one that the motion to continue was not finally granted until the affidavit was made, and all this was done before the affidavit for a transfer was filed. If the justice’s direction to the sheriff to make a list of jurors was not regular, then was the time for defendant to object. As he did not, he waived any objection on that ground. The objection that the venire, in all other respects regular, described the action as a civil action, goes to matter of form and not of substance. The jurors were properly drawn, and they all appeared pursuant to the venire,- so that there was no prejudice, nor any effect at all, from the use of the word “civil” instead of the word “criminal” in the venire. The cause was heard on an appeal on questions of law alone, in the district court, at the October term, taken under advisement, and the defendant ordered to appear at the next general term. That order did not continue the case, nor prevent the doing meantime of anything that might have been done had it not been made, except that it prevented the forfeiting of the recognizance until the next term. Judgment affirmed.