Baker v. State

• Citation: 80 Wis. 416,50 N.W. 518
• Parties: BAKER v. STATE.
• Decision Date: 17 November 1891
• Court: United States State Supreme Court of Wisconsin

80 Wis. 416

50 N.W. 518

BAKER

v.STATE.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Error to circuit court, Ashland county; J. K. PARISH, Judge. Reversed.

Information against E. W. Baker for larceny. Judgment of conviction. Defendant appeals.G. W. Cate and Rublee A. Cole, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State.

WINSLOW, J.

The plaintiff in error was convicted, June 25, 1890, in the circuit court of Ashland county, of larceny of about $39,000 from the vault of the Iron Exchange Bank of Hurley, Wis., September 20, 1889. The preliminary examination was held before the municipal court of Ashland county, and the information (which was jointly against plaintiff in error and one Phelps Perrin) was filed in said municipal court. Afterwards, upon affidavit of prejudice filed by plaintiff in error, the place of his trial was changed to the circuit court of Ashland county, and he then had a separate trial.

Some preliminary questions are raised as to the ruling of the judge of the municipal court upon a plea in abatement filed by plaintiff in error before the change of venue took place. The material parts of this plea were substantially: (1) That chapter 94, Laws 1889, being the act creating the said municipal court, is unconstitutional, because it attempts to confer on the clerk of such court the power to hold criminal examinations, and that consequently the plaintiff in error had not had a legal preliminary examination, and had not waived the same; (2) that no order had been filed by the municipal judge, prior to the then current term, directing that no grand jurors be summoned for said term, and therefore a grand jury should have been summoned, but none in fact had been summoned, and no indictment preferred against plaintiff in error, and that he could not be legally tried upon an information; (3) that there was no such court as the municipal court of Ashland county, and no such officer as the judge of said court, either de jure or de facto, prior to the first Monday in January, 1890. It appears that this plea was summarily overruled by the municipal court without any issue being taken thereon. This method of disposing of the plea in abatement was undoubtedly irregular. The district attorney should have taken issue thereon either by reply or demurrer, and such issue should have been tried. This was decided in Martin v. State, 79 Wis. 165, 48 N. W. Rep. 119. We trust we shall not be again required to call attention to this rule of criminal procedure. But, although the plea was not regularly disposed of, still, if it was upon its face bad, the defendant cannot be said to be prejudiced. That it was bad is clear. Even if it be assumed that so much of the act creating the municipal court of Ashland county as attempts to confer on the clerk of the court power to examine persons applying for warrants, and to issue warrants, is unconstitutional, as an attempt to confer judicial power upon an officer not authorized by section 2, art. 7, of the constitution, this, upon familiar principles, would not invalidate the balance of the act. Lynch v. Economy, 27 Wis. 69.

It clearly appears, inferentially from the plea itself, and directly from the statements of the bill of exceptions, that the statement that plaintiff in error had received no preliminary examination was, in effect, a legal conclusion based upon the supposed fact that no such court as the municipal court, or judge as the municipal judge, was in existence before January, 1890, and consequently that the pretended examination admittedly held before said municipal judge prior to January, 1890, was in fact no examination. This objection has been thoroughly disposed of by this court in the cases of In re Burke, 76 Wis. 357, 45 N. W. Rep. 24, and In re Manning, 76 Wis. 365, 45 N. W. Rep. 26. As to the objection that the plaintiff in error could not be prose cuted at the term in question under an information, but must be indicted by a grand jury, it is sufficient to say that the law upon which counsel rely, viz., chapter 140, Laws 1889,¹ does not purport to affect the provisions of law authorizing prosecutions by information in any respect. We conclude that the plea in abatement was bad in law, and that plaintiff in error was not prejudiced by the summary disposition of it.

It is, in the next place, objected that the circuit court of Ashland county had no jurisdiction of the cause, because it was not in an “adjoining circuit.” This is based upon the ground that chapter 166, Laws 1889,² is applicable to the municipal court of Ashland county, and controls and amends the organic act creating that court, because it was passed afterwards. We shall not decide whether this contention be correct or not. If it be correct, we hold that the fifteenth circuit, of which Ashland county was a part, was an adjoining circuit. The counties then composing the fifteenth circuit, outside of Ashland county, were Bayfield, Oneida, Price, Sawyer, and Taylor. A glance at the map shows that these counties entirely surrounded Ashland county, and thus, if the fifteenth circuit was not an adjoining circuit, there was no such circuit.

We come now to the objections and exceptionstaken upon the trial. The state claimed that there was a combination or conspiracy between Baker and Phelps Perrin to commit this larceny, and offered much testimony as to the acts and declarations of Perrin in the absence of Baker. The principle is well established that evience of the acts and declarations of coconspirators, if made pending the conspiracy, and in furtherance of, or with reference to, the common design, are admissible against all, and it is not necessary that the defendant, against whom the act or declaration is sought to be introduced, should have been a conspirator at the time the act or declaration took place. If he subsequently joined the conspiracy, he ratified the previous acts of the conspirators, and made such prior acts and declarations in reference to the common object evidence against him. Holtz v. State, 76 Wis. 99, 44 N. W. Rep. 1107. But it is indispensable that there be proof sufficient to establish prima facie the fact that a conspiracy existed at the time of the act or declaration sought to be introduced. In the present case the state was allowed to prove, against objections, conversations of Perrin, in the absence of Baker, with the witnesses Goodland and Seymour, which took place in ...