#### HARVEY E. ALLEN, Plaintiff in Error, *vs.*THE STATE OF WISCONSIN, Defendant in Error.

ERROR TO WALWORTH CIROUIT COURT.

The Circuit Court has original jurisdiction of ah criminal offences committed in the state, and when no other mode of prosecution is provided, the proceeding may he hy indictment.

Although justices of the peace are authorized to try certain offences and misdemeanors created by statute, yet the circuit courts have also jurisdiction of such offences, unless prohibited by law, or exclusive jurisdiction is conferred upon justices of the peace.

By section 5 of chapter 162 of the Session Laws of 1851, the selling of intoxicating liquors without license, was made a misdemeanor.

Chapter 162 of Session Laws of 1851, does not confer upon justices of the peace exclusive jurisdiction of the offences thereby created, but the same are indictable in ■ the Circuit Court.

Under chapter 162 of Session Laws of 1851, it was not essential to the offence, that the liquor sold was to be drunk on the premises of the sellei’. The offence consisted in the mere act of selling, dealing in, or, if for the purpose of evading the law, giving away spirituous liquors without license.

By the same act the quantity sold is immaterial.

The averment in the indictment that the defendant sold, &e., without first obtaining a license therefor, is sufficient.

Where the offence was committed after the commencement of .the term at which the indictment was found, the caption was allowed to be amended so as to show that the actual presentment of the same in court by the grand jury, was subsequent to the day on which the offence was charged to have been committed.

The court cannot mend the body of an indictment, that being the finding of the grand jury, but the caption may be amended by the records, so as to show the actual day of presentment.

Am indictment may be returned for an offence committed at any time previous to the finding of the bill, although such offence is committed after the commencement of the term of court at which such bill is returned.

Where an indictment is returned for an offence committed after the commencement of the term at which it is found, the caption should recite that the indictment was found at a court begun and held at, &e., and continued by adjournment to a day named, being after the time of the alleged offence.

This was an indictment for selling spirituous liquors found and presented in tbe circuit of Walworth county. As the seve*330ral points in judgment arise from, and are based upon.objections taken to tbe form or substance of tbe indictment, it is given at length as follows: ■ ■ ! *■*

“ *State of Wisconsin, Walworth*county, ss: At a term of tbe Circuit Court in and-for tbe county of-Walworth, in tbe state of Wisconsin, begun and beld at tbe court-house in Elkhorn, in said county, on the third Monday in’ May (being'the twenty-first day thereof), in tbe year of our Lord one thousand eight ■ hundred and fifty-five, before the Honorable James R._ Doolittle, judgd of first judicial circuit of the state of Wisconsin :

*“*The jurors of the grand jury of the state of Wisconsin, *good*and lawful men of the county of Walworth aforesaid, duly selected, impanneled, sworn and charged to inquire in and for the body-.of the county of-Walworth aforesaid, upon their-'oath present , that Harvey E. Allen; of the town of Geneva, in’’said county of Walworth; on’ the twénty-third day of May, in the year of our’ Lord one thousand eight hundred and fifty-five, at the-village of..Geneva, the same being then and there an- incorporated- village under the laws of-this state, in the said town =-of Geneva, in said county of Walworth, unlawfully and willfully did sell spirituous liquors, to wit whiskey of the quantity of one.gill, to one Charles Gill, without first having obtained .a license therefor according to law, and in ■ compliance with the provisions of an act of the state of Wisconsin, entitled - ‘ Ah a!ct licensing the sale of intoxicating liquors,1 against the form of the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin.

*“*And the said jurors aforesaid, upon their oath aforesaid,'do farther present that Harvey E. Allen aforesaid, of the town of Geneva aforesaid, in the county of Walworth aforesaid, on the twenty-second day of May, in the year of our Lord one thousand eight- hundred and fifty-five, at the -village of Geneva aforesaid (the same being then and there an’ incorporated village as aforesaid, under the laws of this state), in said town of Geneva, and in the county of Walworth aforesaid, did unlawfully and willfullysell spirituous .liquors,--to wit.- -w-hiskeyrof the quantity of two-gills, to Terence Grimes, and received ten cents in pay therefor, with*331out first Raving obtained a license' tRerefor, according to tRe laws of tRe state of Wisconsin,- contrary to tRe- provision's of tRe statute in sucR case made and provided, and against tRe peace and dignity of tRe state of Wisconsin. • ....

“ And the jurors aforesaid, upon tReir oatR'aforesaid; do .fur-tRer present tRat Harvey E. Allen, aforesaid, -at tRe village: of Oeneva, aforesaid, so incorporated as aforesaid, in tRe town and county aforesaid, on tRe fourtR day of July, in the year, of our Lord one thousand eight-hundred and fifty-four, unlawfull-y-nnd willfully did sell spirituous liquors, to wit: whiskey and-brandy of thé quantity of one gill, to Harvey Hill and John M. Nelson, without first Raving obtained a license therefor/ according to the laws of the state of Wisconsin, contrary to the provisions 'of -the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin.

*“*And the jurors aforesaid,-upon their oath aforesaid, do further present that Harvey E.: Allen-aforesaid, :in the-town..of Geneva aforesaid, in the county of Walworth and state' of-Wisconsin, on the first day of January, in -the year of our-Lord -one thousand eight hundred and fifty-four, and oír divers other days and times between that day and the day of -the' finding of this indictment, at the village of Geneva aforesaid (the: same being then and there an incorporated village under the laws of this state), in said 'town of Geneva, in said- county of Walworth '-and-state of Wisconsin, did unlawfully and'willfully sell spirituous liquors, ardent'spirits, and intoxicating drinks, to wit: rüm, gin, brandy, whiskey, wine, and strong beer, of the -quantity-of one gill, to John M. Nelson, Charles' Gill, Henry Gill, Terence Grimes, Thomas Utter, Thomas "Erahcis,' Lansing :D. ■ Hale, Samuel A. Spaford, George Clark, William -Jewett, and "to divers other persons, citizens of this state, and to the .jurors Unknown ; and- did then and there deal-and traffic therein, without first having obtained a license therefor according to law, against the form of the statute -in such case made and provided, and against the peace’and dignity of the state of Wisconsin.”

On the arraignment of the1 defendant, the'district attorney entered a *nolle prosequi*as to the last two counts, whereupon the *332defendant demurred to the remaining counts of the indictment: and for causes of demurrer specified the following:

1. Because the Circuit Court has no original jurisdiction of the offence charged in the indictment, and because said offence is not indictable by the law of the. state.

2. Because the indictment insufficiently and defectively charges the offence in this: that it does not set forth whether the sales of spirituous liquors therein charged were of a quantity greater or less than one gallon; nor whether said liquors were to be drunk on the defendant’s premises; nor whether the defendant made said sales as the keeper of a house of public entertainment for the benefit and accommodation of travelers, or otherwise.

3. Because the indictment contains no sufficient averment that the defendant was not, at the time and place of the sales, duly authorized to do the acts charged against him.

4. Because the indictment charges the defendant with an of-fence committed on a day after the caption of the indictment. Joinder in demurrer.

After argument, the Circuit Court overruled the demurrer, except as to the fourth cause assigned; and as to said fourth cause of demurrer, the court ordered that the caption of the indictment might be amended by the court, by the records remaining therein, so as to show that the day of the actual presentment into court, by the grand jury, of the indictment, was on a day later than that on which the offence set forth therein was charged to have been committed: the caption was accordingly so amended, and the demurrer as to the other causes assigned was overruled. The defendant, by his counsel, duly excepted to the ruling of the court below allowing said amendment, and thereby brought that part of his case to the record in due form: which said exceptions being presented and signed by the judge of the Circuit Court, are brought here for the opinion of this court thereon.

*A. W Farr*and *J. W. Carey,*for the plaintiff in error.

The Circuit Court has no original jurisdiction of this offence, and said offence is not indictable by the law of this state. *Act of*1851, *ch.*162, *sec.*6; *Rev. Stat. ch. 29; Commonwealth vs.**333*Howes,*15 *Pick.*231; 1 *Minot's Digest, p.*14, §§ 1, 2, 16; 3 *Ohand.*265 (271); *Kent Qomm. p.*467.

Tbe indictment defectively charges tbe offence in not setting out whether the sales were of greater or less quantity than one gallon; or whether to be drunk, or not to be drunk on defendant’s premises. *Act of*1851, *ch.*162 ; *Amendment of same*1852, *ch.*427; *Commonwealth vs.*Pray, 13 *Pick.*359; 23 *Pick.*275 ; *Stat. of Mass.*1838, *ch.*157 ; *Rev. Stat. Mass. ch.*47 ; *Commonwealth vs.*Thayer, 5 *Met.*246 ; *Arch. Or. PI.*44.

The indictment contains no sufficient averment negativing a license. *Arch. Or. PI. p.*56 (*37); 24 *Pick.*374.

In regard to amendment of caption, see 6 *Cush. p.*174. "

The first count avers that defendant was not licensed in compliance with the provisions of an act in the statutes of Wisconsin, entitled “ An act licensing the sale of intoxicating liquors whereas the act referred to was repealed by the act of 1852 *(chap.*427), in all the essential particulars of license, and not in force at the finding of said indictment.

The first and second counts are repugnant, the allegation being that the defendant *unlawfully*sold, &c., without first being licensed thereto, *i. e.*to make such *unlawful sale. Arch. Or. PI. p.*66 (*54).

*By the Court,*

Cole, *J.*

At a term of the Circuit Court, for the county of Walworth, begun and held at the court-house in said county, on the 21st day of May, 1855, the plaintiff in error was indicted for selling spirituous liquors without á license, under section 5 of chapter 162 of the Session Laws of 1851.

A demurrer was interposed to the indictment, assigning several causes of demurrrer, which will be subsequently noticed.

The Circuit Court, after permitting the caption of. the indictment to be amended, so as to obviate one objection which had been taken to it, overruled the demurrer. The plaintiff in error *334declining to plead, was. adjudged guilty of the offences charged in the indictment, and a fine was imposed, upon him of .forty dollars and-costs. -

• The writ of error is prosecuted to -reverse this-judgment for matters appearing upon the record; and the first point.made, is, that the Circuit Court had no original jurisdiction of this offence, it not being indictable by the law of .the state.

Section 5 of chapter 162 of the - Session Laws of 1851, provides that “if any person shall vend, sell, or in any way deal out or-traffic in, or for the purpose of evading this act, give away any spirituous, ardent or intoxicating liquors or. drinks, in any quantity whatever, without first having obtained a license therefor according to the provisions of this act, shall.be deemed guilty of -a misdemeanor, and on conviction thereof, shall be punished therefor by a fine,” &c.

The 6th section gives to justices of the peace power to try and determine all offences growing out of the .provisions of-.the act, but the act nowhere professes to give the justices’ court exclusive jurisdiction of such offences, or to prohibit the Circuit Court from taking cognizance of them by. indictment. Such .being the case, the Circuit Court undoubtedly-has original jurisdiction of all offences against the act, by virtue of section .8 of article 7, of the Constitution, and section 6 of chapter 83 of the Re vised. Statutes.. :..

By section 8 of article 7 of the Constitution, the circuit courts have original jurisdiction of all matters civil and criminal within the state, not otherwise excepted in the Constitution, and not thereafter prohibited by law, and by section.6 of chapter -83 of --the Revised ;Statutes,, the said courts have-power and authority to hear and determine all cases of crimes- and *misdemeanors*of whatever kind, not exclusively-cognizable-, by a justice of the peace, which may be committed in any county or place within •their.respective circuits. The act of - selling .spirituous and intoxicating ..liquors without license,-being ma.de. a. misdeipeanor by the statute, and the justices’ court not having ¡.exclusive jurisdiction of the offence, the, Circuit-Courts-have original juris*335diction of tbe offence, by virtue of their common law powers in cases of misdemeanors.

The first count in the indictment charges the plaintiff in eyror with unlawfully and willfully selling■ spirituous liquors, to wit: whiskey, of the quantity of two gills, to Terence Crimes, receiving ten cents in pay therefor, without first having obtained a license, according t.o law. It is now contended that the indictment is insufficient and defective in not setting out whether the sales were of a greater or less quantity than one gallon, or whether the liquor sold was to be drunk upon the premises, or within the house of the plaintiff in error.

The general rule in regard -to criminal pleading undoubtedly is, that the indictment shall set forth the particular facts and circumstances constituting the offence charged. But the statute does not make it an ingredient of the offence that the liquor is sold to be drunk upon the premises. The distinct substantive offence consists in the mere act of *selling,*dealing, trafficking in, .or if for the purpose of evading the law, in giving away spirituous liquors without license. .Neither is there any limitation to the quantity sold. It is perfectly immaterial whether a.gill, pint, quart, gallon or hogshead be sold. If any assignable quantity be sold without license, the act is violated. By the language of the statute, the selling of “ any quantity whatsoever” :is .prohibited. ■ Consequently, the rule laid down in the case of the *Commonwealth vs. Odlin*(23 *Pick.*275), has no application to this case. There the offence consisted in selling, in a quantity less, than fifteen gallons. The averment in the indictment was that a pint was sold, without negativing the idea that a larger quantity was sold: therefore the indictment was held insufficient.

Another objection taken to the indictment is, that it contains no sufficient averment that the plaintiff in error was not duly licensed. We do not think this point well taken. The indictment does most directly and positively allege a willful selling without first obtaining a license therefor according to law. We do not -well see how greater precision and certainty are-attainable in pleading. This averment seems to be substantially like *336those in tbe indictment in tbe cases of tbe *Commonwealth vs. Thurston*(24 *Pick.*374), and *Commonwealth vs. Churchill*(2 *Met.*119), about wbicb no question was made. In the former case, tbe point was made and sustained, that tbe burden of proof was on tbe government to show, *prima*facie, that tbe defendant was not licensed. And it seemed to be placed upon tbe ground, that as tbe county commissioners alone bad tbe authority to grant licenses, and were required by law to keep a record of them, tbe proof as to whether a license bad been granted or not was equally accessible to both parties. In tbe case of tbe *Commonwealth vs. Churchill,*tbe defendant moved for a new trial, that be might have tbe benefit of showing, *in Ms defence,*that be bad been licensed as a taverner, although tbe indictment alleged tbe contrary. Tbe motion was denied, for tbe reason that tbe license exhibited did not authorize him to do tbe acts of wbicb be was accused and- found guilty, and that be bad neglected to bring it forward at tbe proper time for tbe purpose of raising tbe question as to tbe supposed defect of form in tbe indictment. But neither of these cases show that tbe allegation in this indictment that tbe defendant was not duly licensed, is vague and insufficient.

Tbe caption of tbe indictment in this case was as follows:

> “ *State of Wisconsin, Walworth County, ss.:*At a term of tbe Circuit Court in and for tbe county of Walwortb, in tbe state of Wisconsin, begUD and held at the court-house in Elkborn in said county, on tbe third Monday of May (being tbe twenty-first day thereof), in tbe year of our Lord one thousand eight hundred and fifty-five,” &c. From an indorsement on tbe indictment by tbe clerk, it appeared to have been returned and filed on tbe 25th of May. Tbe first count alleged tbe unlawful selling on tbe 23d day of May, 1855. Tbe second count alleged tbe unlawful selling on the 22d day of May, 1855. It was objected that tbe indictment charged the offence to have been committed on a day after tbe date of the caption of tbe indictment. Tbe Circuit Court permitted the caption of tbe indictment to be amended by tbe records of tbe court, so as to show that tbe day of tbe actual presentment of tbe same into court by tbe grand jury was on a *337day later than the day on which the offence therein set forth was charged to haye been committed.

.. The question now is, was it competent for the Circuit Court to amend the caption of the indictment in this particular ? We are of the opinion that it was, ¡and that the following authorities go to that extent: *Penn vs. Bell, Addison R.*156; 1 *Chitty Crim. L.*336; 2 *Hawk. Pl. C. ch. 25,*§ 97 ; *Moody vs.*State, 7 *Blackf.*424; *State vs. Williams,*2 *McCord R.*181; *State vs. Jones,*4 *Halst. R.*2.

It is very true that the court could not amend the body of an indictment, for that is the finding of the grand jury. But we think it might amend the caption, by the records, so as to show the time the indictment was returned into court.

We have been referred to the case of *The Commonwealth vs. Geraud and another*(6 *Cushing R.*175), as establishing a contrary doctrine. In that case, however, the right of the Common Pleas to amend the caption of the indictment upon application made for that purpose, was not raised in the argument, or passed upon by the court. It appears that upon the trial, the attorney for the commonwealth, to support the second count of the indictment, offered in evidence certain acts of the defendants that took place on the day after the commencement of the term at which the indictment was found. The defendants objected to the competency of the proposed evidence, on the ground that the indictment purported to have been found by the grand jury at a term anterior to the time of the acts, offered to show the commission of the offence. The court say, “We are also equally clear that an indictment may be returned for an offence committed at any time previous to the finding of the bill, although such offence is committed after the commencement of the term of court at which such bill is returned.” 2 *Hale's P. C.*156 ; 1 *Ohitt. Or. L.*315. “ But when the offence was committed after the commencement of the teim, it would seem to be the more regular and proper mode to recite in the caption that the indictment was found at a court begun and held at, &c., and continued by adjournment to a day named, being after the time of the alleged offence. Whether the omission to do so will require the rejection of all *338evidence of acts tending to show an offence committed after tbe commencement of the term, we have thought unnecessary to decide, as we think this verdict should be set aside on other grounds.”

The only change made in the law of 1851, by chapter 422 of Session Laws of 1852, appears to be in giving to the boards which grant licenses, discretion as to the amount to be paid therefor, and also in reducing the fine prescribed by section 5, of the former act, for a violation of its provisions. In all other respects the act of 1851, remains in full force, and the indictment was properly found under it. \

We think the conviction in this case was right, and the judgment of the Circuit Court is affirmed, with costs.