Hanley v. State

• Citation: 125 Wis. 396,104 N.W. 57
• Parties: HANLEY ET AL. v. STATE.
• Decision Date: 23 June 1905
• Court: United States State Supreme Court of Wisconsin

125 Wis. 396

104 N.W. 57

HANLEY ET AL.

v.STATE.

Supreme Court of Wisconsin.

June 23, 1905.

Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.

William Hanley and another were convicted of extortion, and bring error. Affirmed.

Plaintiffs in error, William Hanley and Joseph Trost, were arrested, tried, and convicted upon the complaint of Paul Lehnhagen, made on August 28, 1903, before the district court for Milwaukee county, charging them with malfeasance in office by willful extortion, wrong, or oppression. The complaint is as follows:

“Paul Lehnhagen, being first duly sworn, on oath complains to the district court of Milwaukee county that William Hanley and Joseph Trost, on the 24th day of February, A. D. 1903, in the county of Milwaukee, Wisconsin, he, the said William Hanley, and he, the said Joseph Trost, then and there being a duly elected, qualified, and acting constable of the town of Wauwatosa, by color of a certain warrant, commonly called a search warrant, which they, the said William Hanley and Joseph Trost, then and there alleged to be in their possession, and that the said William Hanley and Joseph Trost afterwards, and whilst the said Paul Lehnhagen remained in their custody as aforesaid, to wit, on the 24th day of February, 1903, at the town of Wauwatosa, in the county of Milwaukee, Wisconsin, unlawfully, corruptly, deceitfully, extorsively, and by color of their said office, did then and there conspire to, and did, extort, receive, and take of and from him, the said Paul Lehnhagen, the sum of seventy-five dollars in money, of the value of seventy-five dollars, as and for a fee due to them, the said William Hanley and Joseph Trost, as such constables as aforesaid, for the obtaining and discharging of said warrant, as they, and each of them, the said William Hanley and Joseph Trost, then and there fraudulently and wickedly alleged, and that by means of said representations, and by color of their said offices, the said William Hanley and Joseph Trost did then and there willfully extort from, and did wrong and oppress, the said Paul Lehnhagen as above set forth; whereas, in truth and in fact, as they, the said William Hanley and Joseph Trost, then and there well knew, neither the said William Hanley nor the said Joseph Trost, nor both, had legal right to the said sum of seventy-five dollars, extorted from and paid as aforesaid by the said Paul Lehnhagen--all of which was contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Wisconsin; and prays that the said William Hanley and Joseph Trost may be arrested and dealt with according to law.

+-------------------------+
                ¦[Signed]¦Paul Lehnhagen. ¦
                +-------------------------+
                

Subscribed and sworn to before me this 28th day of August, A. D. 1903.

Frank J. Grutza,

Deputy Clerk of the District Court.”

The case was appealed from the district court to the municipal court for Milwaukee county. Before trial in this court the defendants moved for a change of venue to some other county, upon the ground that a fair and an impartial trial could not be had in Milwaukee county on account of the prejudice of the people. The motion was supported by the affidavits of the defendants and of a large number of citizens of the county, which stated, in substance, that affiants had good reason to believe, and did believe, that defendants could not obtain a fair and impartial trial in Milwaukee county on account of the prejudice of the people; that the belief of affiants was grounded on the fact that various newspaper articles, referring to the charge, had been circulated and published in different newspapers in Milwaukee and had been widely read and discussed by the people, and the belief was also founded on conversations with people on the subject. The affidavits do not state what the published articles contained, nor the facts and circumstances of the conversations with people by affiants, from which the court could itself determine on what the application was founded. The application was denied, and the defendants were then put upon trial before a jury. The verdict of guilty was rendered, and the defendants in error were sentenced to imprisonment in the Milwaukee House of Correction for a term of six months. This is a writ of error to the judgment.H. L. Eaton and J. E. Roehr, for plaintiffs in error.

L. M. Sturdevant, Atty. Gen., and Walter D. Corrigan, Asst. Atty. Gen. (E. T. Fairchild, of counsel), for the State.

SIEBECKER, J. (after stating the facts).

It is contended that the plaintiffs in error were entitled to a change of the place of trial on account of the prejudice of the people of Milwaukee county. The statute (section 4679, Rev. St. 1898) provides that the trial of criminal cases is to be had in the county where the offense is committed, except in cases especially provided for, unless it shall be made to appear to the court by affidavit that a fair and impartial trial cannot be had in such county, and upon such a showing, “if the offense charged in the indictment or information be punishable by imprisonment in the state prison,” the court may change the venue to an adjoining county.The statute in terms prescribes that the place of trial in all cases shall be in the county where the offense is committed, and that the court wherein the action is pending shall have power to change the place of trial in cases wherein the offense charged in the information or indictment is punishable by imprisonment in the state prison. In Boldt v. State, 72 Wis. 7, 38 N. W. 177, a prosecution on complaint for a misdemeanor, the statutes providing for a change of venue were under consideration, and the court there stated: “The right to a change of venue is purely statutory (Baker v. State, 56 Wis. 573, 14 N. W. 718), and it is clear that this case is not within the letter of the statute. But it is said to be within its spirit, and that the words ‘indictment’ and ‘information’ are used in the section as descriptive of all cases of criminal prosecution, of every kind, and include an appeal in a criminal case from a justice of the peace, as well as one on information filed in the circuit court. We do not feel justified in giving the language such a construction. The language is very plain, and it is evident from the whole chapter that the Legislature was regulating criminal prosecutions in the circuit court by indictment or information. To say that the provision applied to an appeal from a justice in a criminal case would be amending the statute, and pure legislation.” This interpretation of the statute appears to accord with the intention of the Legislature expressed in the context, and is decisive of the question presented here. The defendants are not on trial upon indictment or information for an offense punishable by imprisonment in the state prison, and therefore had no right to a change of the place of trial.

It is claimed that the complaint should have been dismissed, as requested by defendants, for the reason that it is insufficient, indefinite, and uncertain. The complaint is lodged under section 4550, Rev. St. 1898, under which “any officer, agent or clerk of the state or of any county, town, etc., or in the employment thereof, * * * who shall be guilty of any wilful extortion, wrong or oppression therein, shall be” subject to punishment as therein provided. The claim is made that the complaint fails to charge, in reference to the alleged extortion, the amount due, if any, and that it was demanded as compensation for some official duty for which a fee is prescribed, and that the demand was made and the money extorted for a fee to which the defendants were not entitled. Under this statute, the offenses of extortion and oppression, as they existed at common...