Gordon v. State

• Decision Date: 17 June 1914
• Citation: 158 Wis. 32,147 N.W. 998
• Parties: GORDON v. STATE.
• Court: Wisconsin Supreme Court

158 Wis. 32

147 N.W. 998

GORDON

v.STATE.

Supreme Court of Wisconsin.

June 17, 1914.

Error to Circuit Court, Bayfield County; G. N. Risjord, Judge.

Charlotte Gordon was convicted of perjury, and she brings error. Affirmed.

Error brought to reverse a conviction for perjury. The information charged, in substance, that the plaintiff in error (hereinafter called the defendant) on the 1st day of October, 1912, committed the crime of perjury in a criminal action before the third municipal court of Bayfield county by falsely testifying that one George Troy did not give to her whisky on the 30th day of September, 1912, whereas in fact the said Troy did give her whisky at said time. To this information a so-called plea in abatement was filed, stating: (1) That she was not guilty; (2) that no complaint had been filed against her before the examining magistrate; (3) that neither the complaint nor warrant charged any crime; (4) that no evidence showing any criminal offense was taken before the examining magistrate; (5) that no evidence was offered or received before said magistrate, tending to show that there was probable cause to believe the defendant guilty of any criminal offense; (6) that she has received an allotment of land from the United States as an Indian; (7) that she is a civilized person and a citizen of the United States, of Indian descent, and not a member of any tribe; (8) that the information filed states no facts constituting a crime; and (9) that she is not and never was a fugitive from justice. The state demurred to all of the plea except the fourth and fifth paragraphs, which paragraphs it denied. The records of the municipal court were received in evidence on the issue of fact raised by the denial of the fourth and fifth paragraphs of the plea, and the court sustained the demurrer held against the defendant on the issue of fact, and thereupon the trial proceeded before a jury on the plea of not guilty, resulting in a conviction.John K. Parish, of Ashland, for plaintiff in error.

W. C. Owen, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for the State.

WINSLOW, C. J. (after stating the facts as above).

The prosecution of Troy was a prosecution under section 1567, Stats. Wis., for giving whisky to an Indian, i. e., the defendant. In that case there were two issues: (1) Whether Troy gave the defendant any whisky; and (2) whether the defendant was an Indian. On the trial of that case the defendant was a witness. The claim of the state in the present case is that she then falsely testified that Troy gave her no whisky. The serious claims made by the defendant will be briefly considered.

[1] I. That there was no valid complaint filed or warrant issued in the preliminary examination in the present case. The bill of exceptions states that both the complaint and warrant were offered and received in evidence; only the warrant, however, is returned with the bill. The fact is therefore undoubted that there was a complaint filed, and as the warrant recites the substance of the complaint, and shows that it conformed substantially to the requirements of section 4661, Stats. Wis., regulating informations for perjury, it affirmatively appears that the complaint was sufficient. Only a substantial statement of a criminal offense in the complaint is...