Grimes v. State

• Decision Date: 08 October 1940
• Parties: GRIMES v. STATE.
• Court: Wisconsin Supreme Court

236 Wis. 31

293 N.W. 925

GRIMES

v.STATE.

Supreme Court of Wisconsin.

Oct. 8, 1940.

Error to review a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Circuit Judge.

Reversed with directions.

Earl Grimes, plaintiff in error, hereinafter called defendant, was convicted on three counts of an information which charged that on November 2, 9 and 10, 1938, he violated sec. 343.401, Stats. 1937. Shortly after the commission of said crimes, the defendant was arrested and bound over to the circuit court. On November 28, 1938, he was committed to the Winnebago State Hospital. He was paroled from that hospital on April 1, 1939. In the fall of that year he was taken into custody on the worthless check charges. It was arranged between his counsel, the district attorney, and the circuit court that the action be continued over to the spring term of the court so as to give the defendant an opportunity to make restitution. On April 15, 1940, the defendant, upon being brought into court without his attorney, entered a plea of guilty to each count of the information. The court then asked the defendant certain questions, which the defendant answered as follows:

“Q. Have you been arrested before or charged with any criminal offense? A. My wife had me arrested.

“Q. What did she have you arrested for? A. Contempt case. I did not pay the full amount of alimony.

“Q. You did not take care of your children? A. I did not pay the full amount. I couldn't.

“Q. Where did she have you arrested? A. Outagamie county.

“Q. Been arrested for anything else besides this? A. No sir.

“Q. Are you sure of that? A. Yes sir.

“Q. Is that the only time? A. I was arrested for not stopping at a stop signal.

“Q. Where was that? A. Outagamie county.

“Q. What happened to that? A. I paid a fine of $9.95.

“Q. Before that wasn't you arrested for any crime? A. No sir, no crime.”

Thereafter, on April 18, 1940, the defendant was again brought into court and informed that on his plea of guilty the court found him guilty of the offenses charged in the information. The court then asked the defendant's attorney, who was then present in court, a number of questions and also asked an aunt of the defendant several questions relative to the defendant, his habits, his employment, his earnings, etc. The court thereupon sentenced the defendant as follows: “The sentence in your case is that you be committed to state prison at Waupun at hard labor for a term of not less than one year or more than one year on count one, and that you be committed to the state prison at Waupun for a term of not less than one year or more than one year at hard labor on count two, and the same sentence on count three, your term of imprisonment to begin at twelve o'clock noon today, and these sentences to run concurrently.”

The defendant thereupon promptly petitioned the court to correct the sentence, claiming that it was excessive. The petition was denied. The defendant then sued out a writ of error and obtained a stay of sentence upon his giving a proper bond.

Abram J. Cohen, of Appleton, for plaintiff in error.

John E. Martin, Atty. Gen., and William A. Platz, Asst. Atty. Gen., for defendant in error.

NELSON, Justice.

The defendant contends that the court erred in sentencing him to the Wisconsin state prison. Sec. 343.401 provides that any person who violates that section “shall be guilty of a misdemeanor, and punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or both fine and imprisonment.” In Veley v. State, 194 Wis. 408, 216 N.W. 522, it was held that the trial court erred in sentencing the defendant to the state prison for one year for violating sec. 343.401, Stats., because the place of punishment was not designated in the statute but was designated as a misdemeanor and that therefore section 353.27, Stats., was applicable to fix the place of punishment.

Sec. 353.27, Stats., provides: “Any person who shall be convicted of any offense the punishment of which is not prescribed by any statute of this state shall be punished only by imprisonment in the county jail not more than one year or by fine not exceeding two hundred and fifty dollars.”

[1] Upon the authority of Veley v. State, supra, which construed the penal part of sec. 343.401, the sentence of the defendant to the state prison was erroneous.

The state contends that the sentence should be upheld on the theory that the court sentenced the defendant to the state prison under Sec. 359.14, Stats. 1939, one of the habitual criminal or repeater statutes. That statute provides: “When any person is convicted of any offense punishable only by imprisonment in the county jail or by fine, or both, and it is alleged in the indictment, information or complaint and proved or admitted on the trial or ascertained by the court after conviction that he had been before sentenced to imprisonment, either in any state prison, state reformatory, house of correction or county jail, by any court of this state or of any other state or of the United States, and that such sentence remains of record and unreversed, whether pardoned therefor or not, such person may be punished by imprisonment in the county jail not less than the shortest time fixed for such offense and not more than one year, or by imprisonment in the state prison not more than three years nor less than one year.”

There is nothing in the record to show that the court sentenced the defendant under sec. 359.14, Stats. 1939, unless it be assumed that the court was of the view that the answers of the defendant recited in the statement of facts were sufficient to prove beyond a reasonable doubt that the defendant had...