Drewniak v. State ex rel. Jacquest

• Decision Date: 13 January 1942
• Citation: 1 N.W.2d 899,239 Wis. 475
• Parties: DREWNIAK v. STATE ex rel. JACQUEST and seven other cases.
• Court: Wisconsin Supreme Court

239 Wis. 475

1 N.W.2d 899

DREWNIAK

v.STATE ex rel. JACQUEST and seven other cases.

Supreme Court of Wisconsin.

Jan. 13, 1942.

Writ of error to the Circuit Court for Milwaukee County; William F. Shaughnessy, Judge.

Habeas corpus proceedings by the State, on the relation of Joseph Jacquest, on the relation of A. Joseph Martin, on the relation of Otto Schroeder, on the relation of Clarence Seider, on the relation of Edward Woodruff, on the relation of Paul Nowatske, on the relation of Hubert Voss and on the relation of Garland Buckeye, against Joseph Drewniak, Acting Superintendent of the House of Correction. To review adverse judgments, Joseph Drewniak, Acting Superintendent of the House of Correction, brings error.-[By Editorial Staff.]

Affirmed.

Habeas corpus. Other cases involving the same question were brought to this Court by writ of error, it being stipulated that the cases should be considered together and that the same mandate should be entered in the other cases that is entered in this case. The facts are substantially the same in all the cases but we shall deal with the facts in the Jacquest case (State No. 9). They are as follows:

On July 19, 1938, the defendant was convicted in the circuit court for Waukesha county with other defendants of criminal conspiracy in setting up and maintaining slot machines in various places in Waukesha county, in violation of sec. 348.07. The defendant appealed to this court and the case on the former appeal is reported in State v. Martin, 1939, 229 Wis. 644, 282 N.W. 107. The judgment was affirmed and the record remitted to the circuit court of Waukesha county where it was received and filed on February 1, 1939. Prior to the return of the record to the circuit court, the circuit judge directed the appearance of the defendant with others, as a material witness in two criminal actions then pending against one Herman Salen and he was required to give bond for his appearance as a witness at the trial of said actions. Subsequently the defendant did appear before the grand jury and gave testimony concerning matters under consideration by it and particularly concerning the indictments found against Salen. He and they were important and necessary witnesses on behalf of the state. Upon application of the special assistant district attorney, the court on January 31, 1939, made an order staying execution of the sentences imposed upon the defendant for a period of forty days to March 11, 1939, his bond to continue in force. Upon a second application the court extended the stay of execution until April 22, 1939, the bond to continue in force. On April 14, 1939, and before the stay had expired, the special assistant district attorney asked for a third extension of the stay and on April 15, 1939, stay of execution was extended to June 22, 1939. Upon a fourth application it was extended until October 15, 1939. On June 9, 1939, the defendant signed the following consent and request: “We, the undersigned, defendants in the above entitled action who were convicted of the crime of conspiracy and sentenced to imprisonment in the House of Correction for Milwaukee County for a period of six months, do hereby respectfully petition the Court to grant an extension of stay of execution of the sentence imposed upon us by the above named Court on our conviction, to each of us, until October 15th, 1939.”

It was upon this consent that the order dated June 13, 1939, was issued. On September 27, 1939, there was a further order upon a like consent, extending the stay until January 15, 1940. It was subsequently further stayed until March 15, 1940. On March 14, 1940, the defendant procured an order to show cause why the clerk should not be enjoined from issuing any certificate of conviction against the defendants and restraining the clerk from so doing and why the sheriff should not be enjoined from interfering with the personal liberty of the defendant or imprisoning him in the House of Correction of Milwaukee county, and restraining him from so doing.

On April 27, 1940, the order to show cause came on for a hearing. The court denied the motions of the defendant and upon his application granted a further stay of two weeks in order to appeal to this court. A writ of error was issued out of this Court on May 6, 1940, to review the determination of the circuit court for Waukesha county. On motion, the writ was dismissed. Martin v. State, 1941, 236 Wis. 571, 295 N.W. 681. On January 24, 1941, the clerk of the circuit court for Waukesha county issued certificates of conviction and sentence and on the same day the several defendants surrendered to the plaintiff in error and immediately procured writs of habeas corpus from the circuit court of Milwaukee county. On January 27, 1941, the plaintiff in error demurred to the petition and on the following day made return to the writ, alleging that the relator was in his custody pursuant to the aforesaid commitment. On January 30, 1941, the circuit court of Milwaukee county ordered that the relators be discharged. The plaintiff in error seeks to review the judgment entered in accordance with the order.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Homer J. Williams, Dist. Atty., of Waukesha, for plaintiffs in error.

Corrigan & Backus, of Milwaukee, for defendants in error.

ROSENBERRY, Chief Justice.

I. The defendant in error, hereinafter called the defendant, moves to quash the writ of error for the reason that an order discharging a person from custody on a writ of habeas corpus is not reviewable at the suit of the state. The defendant relies upon State v. Grottkau, 1889, 73 Wis. 589, 41 N.W. 80, 1063, 1064,9 Am.St.Rep. 816. Grottkau was indicted, tried and convicted of the offense of riot and was sentenced to confinement at hard labor for one year in the House of Correction. Before the execution of his sentence began, the trial court granted a stay of execution pending determination of an appeal to the Supreme Court. The judgment was affirmed and the remittitur filed in the municipal court on March 13, 1888. On April 5, 1888, Grottkau was committed to the House of Correction pursuant to the sentence. On May 8, 1888, he was brought before a court commissioner on a writ of habeas corpus and a hearing was had on May 12. The commissioner remanded Grottkau to the keeper of the House of Correction and dismissed the proceeding. The matter was removed by certiorari to the circuit court and that court by its order and judgment bearing date May 1, 1888, discharged Grottkau from custody. The state thereupon sought to review the order and judgment of the circuit court by writ of error. This Court reversed the order of the circuit court discharging the defendant.

Upon a motion for rehearing, however, it was held that a writ of error did not lie at the suit of the state to review the judgment of the circuit court. The Court said: “When, as in the present case, a person convicted and imprisoned for crime is discharged from custody in a habeas corpus proceeding by a court of competent jurisdiction, the state cannot obtain a review of the order or judgment in that behalf by writ of error.” The Court held that the writ was improvidently granted and directed that it be quashed and the case dismissed. Following the Grottkau case, ch. 239 of 1889 was passed, which provided that a writ of error may issue to obtain a review by the supreme court of the order or judgment of any court remanding or discharging any person brought before it by writ of habeas corpus. This chapter became a part of sec. 3043, Stats. of 1898, which is now sec. 274.05.

In State ex rel. Isenring v. Polacheck, 1898, 101 Wis. 427, 77 N.W. 708, it was held under the statute that the state might sue out a writ of error where the prisoner was discharged upon habeas corpus proceedings. In that case, however, the writ was taken out in the name of the state on relation of Isenring, the sheriff. In this case the writ of error is sued out by Drewniak, the person in whose custody the defendant was.

In State ex rel. Durner v. Huegin, 1901, 110 Wis. 189, 85 N.W. 1046,62 L.R.A. 700, the facts were as follows: certain persons had been charged with conspiracy and were in custody pending trial. A preliminary examination was had. The defendants declined to give bail and were remanded to the custody of the sheriff whereupon they sued out of the circuit court a writ of habeas corpus to test the legality of their detention. The sheriff made return and justified under the commitment upon which he held them. Upon a hearing the court entered an order discharging the prisoners. The sheriff sued out a writ of error to review the determination of the circuit court. The Court held that he was an aggrieved party; that as such, he had the right to have the determination of the circuit court reviewed. The Court also held in effect that a habeas corpus proceeding is a civil action (page 218 et seq. of 110 Wis., 85 N.W. 1046,62 A.L.R. 700).

It is to be noted that in the Grottkau case the writ was sued out by the state of Wisconsin in the name of the state. It is clear from these decisions that the writ of error was properly granted and that the plaintiff in error is entitled to a review of the judgment of the circuit court.

We need not discuss whether the writ should be issued in the name of the state or in the name of the officer in whose custody the prisoner is. The decisions are not uniform. See 10 A.L.R. 385, Note-Right of state or public officer to appeal from an order in habeas corpus releasing one from custody, III, (e), State or public official as party aggrieved by discharge, 396. See continuation, 30 A.L.R. 1322. Whether the state may properly sue out the writ in its own name or not, it is a party in interest and is entitled to be heard.

Motion of the defendant to quash the writ of error is denied.

II. In this Court it is the contention of the defendant that the sentence began to run when the r...