Boynton v. Circuit Judge

1 McGrath 265

• Court: Michigan Supreme Court
• Decided: January 22, 1891
• Docket: No. 11731
• Status: Published

Opinion

To compel respondent to quash an information.

Granted January 22, 1891.

The information charged that John Boynton on the fourth day of August, 1890, etc., “was then and there a disorderly person within the meaning of Sec. 1, of Act No. 264 of the Laws of 1889, for that said J. B. was then and there a drunkard and a tippler,” and that said J. B. had been convicted of the offense as above charged, before, etc., on September 29, 1889, and July 30, 1890, “this is therefore charged as the third offense.”

Relator insisted (1) that two offenses were joined in one count, viz.: that of being a drunkard and that of being a tippler; (2) that in alleging the offense it is not sufficient to merely set forth the language of the statute “drunkard and tippler;” that the acts which go’to make up the offenses must be set forth with reasonable certainty; (3) that the third offense is only cognizable by the Circuit Court; that the first offense was committed under the laws of 1883, before the passage of the Act of 1887, or the Act of 1889; that a conviction under a law for an offense of which justices of the peace only had jurisdiction cannot be made the basis of the jurisdiction of the Circuit Court; (4) that the information fails to show that the offense was a public one or in view of the public, and (5) that in view of the continuous character of the offense a conviction as for a third offense cannot be predicated upon one had but four days prior in point of time.

Respondent cited, Cooley Const. Lim., 330; Rand vs. Com., 9 Gratt., 738; Ross’s case, 2 Pick., 165; People vs. Butler, 3 Cow., 347; see People vs. Cox, 65 N. W., 283.