Jackson v. State

• Decision Date: 18 February 1896
• Parties: JACKSON v. STATE
• Court: Wisconsin Supreme Court

92 Wis. 422

66 N.W. 393

JACKSON

v.STATE

Supreme Court of Wisconsin.

Feb. 18, 1896.

Error to circuit court, Iowa county; George Clementson, Judge.

Motion by William T. Jackson for a new trial, after judgment of conviction, which was affirmed on error. 64 N. W. 838. The motion was denied, and defendant brings error. Dismissed.

Pinney and Winslow, JJ., dissenting.Spensley & McIlhon and P. A. Orton, for plaintiff in error.

J. L. Erdall, Asst. Atty. Gen., for the State.

MARSHALL, J.

This case was before this court on a writ of error, to review the judgment of the circuit court, and was decided October 2, 1895, the judgment being affirmed. After such affirmance, a motion for a new trial was seasonably made, based on newly-discovered evidence, under section 4719, Rev. St., which provides that “the circuit court may, at the term in which the trial of any indictment or information may be had, or within one year thereafter, and either before or after judgment, on petition or motion, in writing, of the defendant, grant a new trial for any cause for which a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms and conditions as the court may direct.” The motion for a new trial was denied, and the order of the trial court in that regard is here for a review at this time, if a writ of error may properly be had to bring such a matter before the court.

By the organic law of the territory at the time of the adoption of the state constitution, a writ of error was allowed only from final judgments, or orders in the nature of final judgments (Hill v. Bloomer, 1 Pin. 283); and this right was preserved and secured by article 1, § 21, of the constitution, which provides as follows, “Writs of error shall never be prohibited by law.” As said by Mr. Justice Lyon, in Buttrick v. Roy, 72 Wis. 164, 39 N. W. 345, in effect, this constitutional provision renders the writ inviolate, as it existed when the constitution was adopted, and at that time its scope and function were to corrrect some supposed mistake in the proceedings or judgment of the court. Hence, it lies only after judgment in an action at law in a court of record, or after an order in the nature of a final judgment, to correct some supposed mistake in the proceedings in respect to such judgment or order. Such is the measure of the constitutional right to the writ, and section 3043 is merely declaratory of the constitutional right, neither extending nor attempting to restrict it. Section 4724, Rev. St., provides that writs of error in criminal cases may issue in the manner and within the time allowed in civil actions, and section 3043, that writs of error may issue to review final judgments in actions tried by jury; the proceeding and judgment to be in accordance with the course of the common law and the rules and practice of the supreme court. This statutory provision, in connection with article 1, § 21, of the constitution, has been repeatedly considered by this court, in cases, from first to last, covering nearly half a century, and the conclusion promulgated soon after the adoption of the constitution has been since reiterated, over and over again, that a writ of error lies only in case of a final judgment, or an order in the nature of a final judgment, given in a court of record proceeding according to the course of the common law. Hence, an extended rediscussion of the subject at this time cannot serve any valuable purpose. In Crocker v. State, 60 Wis. 553, 19 N. W. 435, in an opinion by Mr. Justice Cassoday, the authorities in this and other states are collated; and the conclusion there reached, as explained in Buttrick v. Roy, 72 Wis. 165, 39 N. W. 345, and followed in State v. Ryan, 70 Wis. 676, 36 N. W. 823,State v. Brownell, 80 Wis. 563, 50 N. W. 413, and State v. Smith, 65 Wis. 93, 26 N. W. 258, leaves very little, if anything, that can profitably be said on the subject.

However much the ends of justice may appear to demand a review of the decision of the trial court refusing to exercise the discretionary power granted by section 4719, Rev. St., in favor of the plaintiff in error, the settled law on the subject forbids this court from doing so, though the peculiar circumstances disclosed by the record, and the able presentation of the matter both orally and in the printed briefs of counsel, have led to such careful consideration of the jurisdiction of this court in the premises as the apparent exigencies of the case required, in view of the prior adjudications in respect to the general principles involved. We must hold that an order denying a motion for a new trial, under section 4719, is not a final judgment, or an order in the nature of a final judgment. Hence, the writ of error was improvidently issued, and must be dismissed. Ordered accordingly.

WINSLOW and PINNEY, JJ., dissent.

PINNEY, J. (dissenting).

I cannot concur in the determination of the court, resting, as it seems to me it does, upon what I regard as a mistaken view of its constitutional power and duty as an appellate tribunal. The constitution (section 3, art. 7) provides that “the supreme court, except in cases otherwise provided by this constitution, shall have appellate jurisdiction”; and, with this grant of appellate jurisdiction, and as incident thereto, and without any legislation in its aid, the court took the right to issue and use all common-law writs and process, with the right to frame and issue such other writs as might be necessary to make its appellate jurisdiction effective. Hence it took the right to issue writs of error as common-law process, and to hear and determine the same. The writ was never of statutory origin, though, to a certain extent, its use was regulated by statute, and it was this common-law writ which the constitution provided (section 21, art. 1) should “never be prohibited by law.” It is not material to inquire upon what foundation writs of error rested under the organic act or the statutes of the territory. The legislature might regulate their use, but could not prohibit them for any purpose within their scope at common law. As was said by Ryan, C. J., in Attorney General v. Railroad Cos., 35 Wis. 515: “The framers of the constitution appear to have well understood that, with appellate jurisdiction, the court took all common-law writs applicable to it, and, with superintending control, all common-law writs applicable to that; and that, failing adequate common-law writs, the court might well devise new ones; as Lord Coke tells us, ‘a secret in law.’ Hence the constitution names no writ for the exercise of the appellate or superintending jurisdiction of the court.” It is provided by statute (Rev. St. § 2405) that the appellate jurisdiction of the supreme court “shall extend to all matters of appeal, error, or complaint from the decisions or judgments of any of the circuit courts, county courts or other courts of record, and shall extend to all questions of law which may arise in said courts, upon motion for new trial, in arrest of judgment, or in cases reserved by said courts.” And, by section 2406, it is provided that “in addition to the writs mentioned in section 3, art. 7, of the constitution, the supreme court shall have power to issue writs of prohibition, supersedeas, procedendo, and all other writs and process not specially provided by statute, which may be necessary to enforce the due administration of right and justice throughout the state.” Provisions in substance the same have been in force ever since 1849. Rev. St. 1849, c. 82, §§ 5, 6. It will...