Gaertner v. State

• Decision Date: 09 May 1967
• Citation: 150 N.W.2d 370,35 Wis.2d 159
• Parties: Thomas D. GAERTNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 370

150 N.W.2d 370

35 Wis.2d 159

Thomas D. GAERTNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

May 9, 1967.

Thomas D. Gaertner, pro se.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Allen L. Samson, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

The defendant's conviction is first challenged on the ground the circuit court lacked subject-matter jurisdiction because secs. 954.01 and 954.02, Stats., are unconstitutional in that they permit a complaint which is to be the basis for a warrant to be made before a clerk of the county court, who is not qualified to determine probable cause and hence the complaint is void. In State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391, we held that an arrest warrant may be issued upon a complaint only by an impartial magistrate upon the showing of probable cause and the issuance of such a writ by a clerk of the court upon the order of the district attorney did not provide the procedure by which a warrant is issued by an impartial magistrate. That case was soon followed by State ex rel. La Follette v. Raskin (1966), 30 Wis.2d 39, 139 N.W.2d 667, and State ex rel. La Follette v. Moser (1966), 30 Wis.2d 56, 139 N.W.2d 632, in which we held a defective warrant of arrest went to jurisdiction over the person, not to the subject-matter jurisdiction of the court, and the objection was waived if not raised before the defendant pleaded to the information. We further held State ex rel. White v. Simpson, supra, was to be applied prospectively only. These principles were reaffirmed in Pillsbury v. State (1966), 31 Wis.2d 87, 142 N.W.2d 187, and followed in Galloway v. State (1966), 32 Wis.2d 414, 145 N.W.2d 761, 147 N.W.2d 542. In Pillsbury, where substantially the same argument as that now before us was raised, we held the nonexistence of a complaint and failure to issue a warrant did not go to the jurisdiction of the court to try the accused on the information.

In the instant case the defendant was provided with counsel on December 8, 1964. He was arraigned and pleaded guilty on January 21, 1965. Between these dates he was in court for various motions five times and at no time was the jurisdiction of the court questioned. Objection to the complaint and warrant of arrest was raised for the first time on motions after verdict. The defendant's contention that the trial court lacked subject-matter jurisdiction has no merit and, considered as an objection to personal jurisdiction, has been waived.

The defendant contends he was entitled to be released on bail before trial even though he was a parolee at the time. The basic principle underlying the right to reasonable bail is the presumption of innocence and any denial of personal liberty must meet the test of due process. The right to reasonable bail was recently considered in Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557. If defendant had not been on parole at the time of his arrest, he would have been entitled to bail upon his arrest. However, because he was also held upon an order of the department of public welfare as a parole violator he was not entitled to bail. But for such detention, he was entitled to be held in prison rather than in the county jail awaiting a criminal charge where such imprisonment does not count toward the serving of his sentence. Under sec. 57.06(3), Stats., every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department and a paroled prisoner may be returned to prison at any time on the order of the department. Under sec. 57.072, Stats., the period of parole ceases upon the commission of a crime or some other violation of the terms of parole which is sufficient in the opinion of the court or the department to warrant revocation of parole. During the period that parole is tolled the prisoner is not serving his sentence until he is returned to the penal institution to which he was sentenced or from which he was paroled or from the date of an order of reinstatement of the parole. Consequently, a parole violator held in the county jail is not serving his sentence and is given no credit for such time. While the defendant was entitled to complain of the place of his custody as a parole violator, he was not entitled to bail.

The complaint which was the basis for the warrant of arrest was made on information and belief by Detective William Schendel who was not called as a witness at the trial. A complaint on information and belief is proper. State v. Luczaj (1960), 9 Wis.2d 199, 100 N.W.2d 368; sec. 954.02(1), Stats. The charge in the complaint was substantially repeated in the information and read to the jury. On these facts the defendant argues the failure of the state to call Detective Schendel as a witness denied him his constitutional right of confrontation. We think not. The Sixth amendment to the United States Constitution secures to the accused the right 'to be confronted with the witnesses against him.' This basic and fundamental right is applicable to the states by the obligation of the due-process clause of the Fourteenth amendment. Pointer v. State of Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. But even if this were not so the Wisconsin Constitution, Art. I, sec. 7, guarantees the right in all criminal prosecutions to the accused 'to meet the witnesses face to face.' The right of confrontation, it has been said, is 'not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.' 5 Wigmore, Evidence (3d ed.), p. 123, sec. 1395. See also 21 Am.Jur.2d, Criminal Law, p. 360, sec. 333.

While in a popular sense we say an accused has a right to face his accusers, we mean 'witnesses against him.' However, the right of confrontation does not require the state to produce any particular witness or give the accused the right to insist that the state call any particular witness. People v. Fisher (1962), 208 Cal.App.2d 78, 25 Cal.Rptr. 242; People v. Jolliff (1964), 31 Ill.2d 462, 202 N.E.2d 506. Not even the victim, or the accuser in the sense of the person swearing to the complaint which becomes the basis for the arrest, need be called as a witness. State v. Boodry (1964), 96 Ariz. 259, 394 P.2d 196; Harris v. Commonwealth (Ky., 1958), 315 S.W.2d 630. The constitutionally guaranteed right of confrontation applies in relation to the giving of testimony which is considered by the trier of the fact on the issue of the accused's guilt. Complaining witnesses or an informer or a decoy are not witnesses within such constitutional requirement when they neither become witnesses in person at the trial nor otherwise give testimony to be used on the issue of guilt. State v. Mace (1959), 86 Ariz. 85, 340 P.2d 994; 23 C.J.S. Criminal Law § 999, p. 1047. The constitution guaranteed the common-law right of confrontation along with the common-law limitations and exceptions. As was true at common law, the right of confrontation is satisfied if the accused met the witness face to face at the time he is testifying and then has the opportunity of cross-examining him. This does not necessarily have to occur at the trial. It may occur at the preliminary examination. While an opportunity for the finder of fact to observe the demeanor of witnesses is of advantage, it is not necessarily an essential element of the right of confrontation. State ex rel. Drew v. Shaughnessy (1933), 212 Wis. 322, 249 N.W. 522, 90 A.L.R. 368; Spencer v. State (1907), 132 Wis. 509, 112 N.W. 462.

The defendant relies on United States v. Douglas (C.C.A.7th 1946), 155 F.2d 894, wherein the right to confront witnesses was held to be denied when the trial court permitted two affidavits clipped to the information to be sent to the jury. Only one of the affiants had appeared at the trial and such submission of affidavits, which stated facts supporting all elements of the offense charged, without the right to cross-examine the other affiant constituted evidence upon the issue of guilt. The facts of Douglas must also be distinguished from the case before us, where the information was merely read to the jury to inform them of the issue to be determined. The reading of the charge is not evidence.

The defendant complains of error in admitting into evidence a tire iron found at the scene of the attempted burglary and the use of a statement he made to the police. Recital of sufficient facts to understand these contentions is necessary. At approximately 3:00 a. m. on the morning of Monday, October 19, 1964, two Milwaukee police officers observed two men attempting to pry open the rear door of the Allstate Building Supply Company on Green Bay Avenue in Milwaukee. The policemen were seen by the two men who, after a chase, escaped. About 8:00 p. m. on the same day the defendant and one Ernest Erdman were arrested. On the following day about 11:00 a. m. the defendant signed a statement for the police admitting he was at the building at the time of the alleged offense, was trying to gain entry and ran away when he saw the policemen. A tire iron was found near the door, which had marks on it similar to those which might have been made by such an instrument.

It is argued it was error to admit the tire iron in evidence because it was not sufficiently related to the crime or the defendant. We disagree. Ernest Erdman, who turned state's witness, testified the defendant used a tire iron in trying to force the door of the Allstate building. The iron was identified as being the one found near the door by a detective who scratched his initials and the date on it at the time for identification purposes. We find no error in its admission into evidence.

During the course of the trial the state called as a...