Galloway v. State

• Decision Date: 01 November 1966
• Citation: 32 Wis.2d 414,145 N.W.2d 761
• Parties: Thomas Albert GALLOWAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 761

145 N.W.2d 761

32 Wis.2d 414

Thomas Albert GALLOWAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 1, 1966.

Rehearing Denied Jan. 3, 1967.

Edward D. Cleveland, Milwaukee, Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, of counsel, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Atty. Gen., Milwaukee, for defendant in error.

GORDON, Justice.

Subject Matter Jurisdiction of the Court.

Mr. Galloway challenges his conviction on the ground that the circuit court was without subject matter jurisdiction because the criminal complaint against him was not made before 'a magistrate or other person empowered to issue warrants of arrest' under sec. 954.02(1), Stats. The complaint was sworn to before a deputy clerk of the Milwaukee county court, and such clerk is not one authorized to issue warrants of arrest. Cf. State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391.

This court has held that a defect in the issuance of a warrant of arrest goes to jurisdiction over the person and that an objection thereto is waived if not raised before pleading to the information. State ex rel. La Follette v. Moser (1966), 30 Wis.2d 56, 139 N.W.2d 632; State ex rel. La Follette v. Raskin (1966), 30 Wis.2d 39, 139 N.W.2d 667. Mr. Galloway entered his plea and went to trial without objecting to the complaint, and in this court he seeks to avoid the onus of the waiver doctrine by contending that the trial court lacked jurisdiction over the subject matter. In our opinion, there is no merit to this contention. Cf. Wisconsin Collectors Assn. v. Thorp Finance Corp., Wis., 145 N.W.2d 33, decided by this court on October 4, 1966.

As noted above, a defect in the issuance of a warrant of arrest does to jurisdiction over the person, and it would seem to follow with all the stronger force that a defect in the issuance of a complaint would also go to jurisdiction over the person, as opposed to jurisdiction over the subject matter.

In Pillsbury v. State (1966), 31 Wis.2d 87, 94, 142 N.W.2d 187, 191, this court pointed out that the failure to issue a warrant 'did not go to the jurisdiction of the subject matter but at most to the jurisdiction of the person.' In that case there was also an alleged irregularity in the complaint. At page 96, 142 N.W.2d at page 192, the court said that 'the insufficiency of the complaint on the charge of perjury was not in any sense jurisdictional.' We held that the trial court was empowered to accept a plea of guilty to the amended information and could proceed with the trial even though no formal complaint was filed on the charge of perjury. If the trial court has subject matter jurisdiction over a criminal case in which there has been no complaint at all, a fortiori it has such jurisdiction where the complaint was defectively issued.

Our conclusion is also supported by the ruling in Kushman v. State ex rel. Panzer (1942), 240 Wis. 134, 2 N.W.2d 862, where the defendant attacked his conviction by habeas corpus on the theory that the complaint stated no offense. This court denied the writ and stated, at page 139, 2 N.W.2d at page 864, that if the complaint 'was insufficient for any reason it should have been challenged before proceeding with the trial.' In the Kushman Case, this court relied on what is now sec. 955.09(3), Stats., which asserts that defenses and objections based on defects in the institution of the proceedings are waived if not raised by motion before trial; the section is inapplicable if the defect goes to jurisdiction over the subject matter. Pillsbury v. State, supra.

The foregoing references to Pillsbury, Kushman and Wisconsin Collectors Assn. would seem effectively to dispose of the defendant's challenge to the circuit court's subject matter jurisdiction. However, in apparent contradiction to this view, there are several cases holding that a justice of the peace acquires no subject matter jurisdiction where the affidavit necessary to commence the action omits an element required by statute. City of South Milwaukee v. Schantzen (1950), 258 Wis. 41, 44 N.W.2d 628; Detroit Safe Co. v. Kelly (1890), 78 Wis. 134, 47 N.W. 187; Steen v. Norton (1878), 45 Wis. 412.

A distinction must be made between the situation where a court lacks power to treat a certain subject matter and the situation where a court may treat the subject generally but there has been a failure to comply with the conditions precedent necessary to acquire jurisdiction. In our opinion, only in the former situation is it correct to say that there is a lack of subject matter jurisdiction.

Thus, we doubt that it is appropriate to designate the flaw in a justice of the peace proceedings as going to subject matter jurisdiction merely because the affidavit on file is defective. Possibly, the cases involving justices of the peace are to be distinguished because of the extremely narrow jurisdiction that such courts possess. For example, in Steen v. Norton, at page 419, this court said that a justice of the peace had only 'special jurisdiction * * * in special cases, under special conditions.'

The term 'jurisdiction' has sometimes slipped into a penumbral area which may account for the questionable rule previously applied in justice of the peace cases. In Seyfert v. Seyfert (1930), 201 Wis. 223, 228, 229 N.W. 636, 638, we stated:

'That the term 'jurisdiction' has a double meaning has been fully elucidated by this court upon prior occasions. Cline v. Whitaker, 144 Wis. 439, 129 N.W. 400; Harrigan v. Gilchrist, 121 Wis. 127, at page 223 et seq., 99 N.W. 909. In one sense a lack of jurisdiction means a lack of judicial power to act at all in a given situation or with reference to a certain subject matter. To act under such circumstances is usurpation. It is also used to denote want of jurisdiction of the subject matter of the action in a particular instance where prescribed conditions precedent to the exercise of judicial power have not been complied with--where the power to deal with the subject generally exists, but where, under the particular circumstances, jurisdiction to act in the specific instance has not been acquired. In the latter case action is erroneous, but not void.' (Emphasis added.)

See also State ex rel. Hammer v. Williams (1932), 209 Wis. 541, 245 N.W. 663. These and other decisions have recognized that a court has jurisdiction over the 'subject matter' if it is authorized to hear and determine the primary object of the action. Smelker v. Campbell (1917), 165 Wis. 358, 162 N.W. 171; Will of Rice: Cowie v. Strohmeyer (1912), 150 Wis. 401, 440-442, 136 N.W. 956, 137 N.W. 778; see generally 1 Callaghan, Wisconsin Pleading and Practice, pp. 37-41, secs. 2.14-2.17.

Whether we overrule or merely isolate the justice of the peace cases is perhaps only of academic interest in view of the result of the referendum earlier this year which eliminated the office of justice of the peace from the Wisconsin constitution. See Schaefer v. Hayes (1966), 30 Wis.2d 424, 428, 141 N.W.2d 210.

The defendant also points to Damp v. Town of Dane (1872), 29 Wis. 419, in which a statute provided that upon a petition of 15 qualified residents the county board of supervisors was empowered to lay out a highway. The petition in that case was signed by less than the required number of qualified persons, and the court held that as a result the board of supervisors was devoid of jurisdiction over the subject matter. In our opinion, the Damp Case is inapplicable here where questions of judicial power are involved.

Sufficiency of the Evidence.

Mr. Galloway contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. If this court finds that the jury, acting reasonably, could have found the defendant guilty, we may not disturb the finding. Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101.

In his attack on the sufficiency of the evidence, Mr. Galloway relies on two main arguments. The first is that the testimony of the two arresting officers was so grossly inconsistent that it was not credible. The second is that the record fails to establish that the defendant had an intent to steal or commit a felony, which is a requirement for conviction under sec. 943.10, Stats.

In support of his claim that the testimony of the two police officers cannot be reconciled, the defendant's counsel has painstakingly and almost microscopically compared their testimony. Mr. Justice Cardozo has said, 'It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed.' Shepard v. United States (1933), 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196. There are, indeed, divergencies in the officers' testimony, but it cannot be said that the differences were so severe that they rise to the dignity of making their evidence wholly incredible. The flaws in their testimony were probably apparent to the jurors or brought to their attention by Mr. Galloway's trial attorney. The jury, acting reasonably, could have concluded that the inconsistencies were not decisive. This is especially true since both officers positively identified the defendant as the man they saw inside the office.

Does the record contain sufficient proof of a felonious intent to uphold the conviction? In State v. Kennedy (1962), 15 Wis.2d 600, 113 N.W.2d 372, this court held that a...