Arnold v. Schmidt

• Decision Date: 18 November 1913
• Citation: 155 Wis. 55,143 N.W. 1055
• Parties: ARNOLD, SHERIFF, v. SCHMIDT.
• Court: Wisconsin Supreme Court

155 Wis. 55

143 N.W. 1055

ARNOLD, SHERIFF,

v.SCHMIDT.

Supreme Court of Wisconsin.

Nov. 18, 1913.

Error to Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Habeas corpus by Herbert Schmidt against W. A. Arnold, Sheriff, etc. From a judgment discharging the plaintiff, defendant Sheriff appeals. Order reversed, and cause remanded, with directions remanding the plaintiff to the custody of the Sheriff under the commitment.A. C. Umbreit and E. J. Yockey, Dist. Atty., both of Milwaukee, and W. C. Owen, Atty. Gen., for plaintiff in error.

H. L. Eaton, of Milwaukee (Jared Thompson, Jr., of Milwaukee, of counsel), for defendant in error.

Morris & Hartwell, of La Crosse, as amicus curiæ.

TIMLIN, J.

On February 14, 1912, complaint was made to the district court for Milwaukee county, charging that the defendant in error (hereinafter called defendant) did on February 12, 1912, in the county of Milwaukee, unlawfully and without authority hold himself out to the public as a physician, surgeon, and osteopathist, and did then and there unlawfully and without authority in law practice medicine, surgery, and osteopathy, and did then and there for a fee and for a compensation prescribe and recommend for a like use and apply medical and surgical treatment and osteopathic manipulation for the cure and relief of wounds, bodily injuries, infirmities, and diseases, not then and there possessing and not having obtained a license authorizing him so to do contrary to the statute, etc. On this complaint a warrant was issued, the defendant arrested, and brought before said court, and after trial found guilty “as charged in the complaint,” and adjudged to pay a fine of $100 and costs, and be committed to the house of correction of Milwaukee county at hard labor until said fine and costs were paid or discharged, but such imprisonment not to exceed in all 30 days. Thereafter, and on February 28th next, defendant filed with the clerk of said court a notice of appeal to the municipal court, attempting thereby to appeal from said judgment and sentence, together with a recognizance on said appeal.

[1] While said cause was pending on this appeal in the municipal court, and on June 14th next, the district attorney moved to dismiss the appeal, and on June 18, 1912, the appeal was by order dismissed. The appeal was improperly dismissed; but that error is not available in this proceeding. State v. Momsen, 153 Wis. 203, 140 N. W. 1117. The municipal court, however, held the case for further argument until October 8, 1912, when he ordered that all papers, files and records in the cause be remanded to the district court for Milwaukee county.

[2] On the date last mentioned the last-named court issued a commitment committing the defendant to the house of correction “until such fine and costs are paid, or until he shall be thence discharged by due course of law,” but not to exceed 30 days. Under such circumstances the term of imprisonment had not expired, and did not begin until defendant was taken on the commitment. State v. Momsen, supra. Defendant was taken in custody on this commitment by the plaintiff in error (hereinafter called plaintiff), whereupon defendant at once procured a writ of habeas corpus from the circuit court for Milwaukee county, and the latter court on January 22, 1913, in proceedings upon said writ, discharged the defendant from custody on the ground that his imprisonment was illegal. Between the time of the issuing of the writ of habeas corpus on October 8, 1912, and the order of discharge on January 22, 1913, the defendant was in the custody of his attorney by order of the court, and was not in the custody of the sheriff of Milwaukee county, or any other peace officer, or keeper of the common jail, or in other place of incarceration.

The plaintiff contends that the discharge was illegal and unauthorized, because the circuit court considered the evidence taken on the trial, the transcript of which was attached to and made part of the petition for habeas corpus, and therefrom concluded that there was no evidence tending to show the defendant guilty of any offense. The defendant maintains the right and duty of the circuit court to so examine the evidence and decide thereon in a habeas corpus proceeding. Counsel substantially agree that there was evidence that the defendant for pay treated a person claiming to be suffering from some ailment by rubbing or manipulating the spine of such person. They agree further that the defendant claimed to be acting as a “chiropractic” in so doing. The statute (section 1435b, Wis. Stats.) provides for licensing all persons practicing medicine, surgery, or osteopathy in any of their branches in this state, and, further (section 1435e), that any person beginning such practice without having obtained such license, etc., shall be punished by fine, etc.

[3][4] If the complaint had charged that the defendant carried on business as a chiropractic, and did for a fee or compensation prescribe or recommend chiropractic manipulation, it is probable the complaint would state no offense; but, if to this were joined an averment that that which the defendant practiced and carried on and prescribed was in fact a branch of osteopathy, although defendant called it by the other name, the complaint would be good. So under the complaint in the instant case and the evidence the district court had jurisdiction to decide this very question. He might have been convinced that the defendant was practicing osteopathy, nothwithstanding defendant chose to call it by another name. The district court had jurisdiction to construe this statute, and, if he erred in his construction so as to make the term “osteopathy” cover more than it should cover, and include the quite similar acts done by the defendant, that was not...