Jackson v. State

• Decision Date: 22 October 1895
• Citation: 91 Wis. 253,64 N.W. 838
• Parties: JACKSON v. STATE.
• Court: Wisconsin Supreme Court

91 Wis. 253

64 N.W. 838

JACKSON

v.STATE.

Supreme Court of Wisconsin.

Oct. 22, 1895.

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

William T. Jackson, found guilty of fornication with Mildreth Daniels, brings error. Affirmed.

It appears from the record: That the plaintiff in error was tried and convicted on the second count of the information, of which the following is a copy: “State of Wisconsin, Iowa County. Circuit Court. Information. State of Wisconsin v. William T. Jackson. Count 1. I, G. R. Whitman, district attorney for said county, hereby inform the court that on the 7th day of July, A. D. 1894, at said county, William T. Jackson did with force and arms, in and upon one Mildreth Daniels, a female of the age of ten years or more, to wit, of the age of fourteen years, violently and feloniously make an assault, and her, the said Mildreth Daniels, then and there, by force and against her will, violently and feloniously did ravish and carnally know, against the peace and dignity of the state of Wisconsin. Count 2. I further inform the court that on the 7th day of July, A. D. 1894, at said county, William T. Jackson did commit fornication and have sexual intercourse with one Mildreth Daniels, a (single) female of previous chaste character, and under the age of fifteen years, to wit, of the age of fourteen years, against the peace and dignity of the state of Wisconsin. G. R. Whitman, District Attorney for Iowa County. Dated at Dodgeville, Wisconsin, September 24, A. D. 1894.” That before any proceedings were had in the case, the state, with the leave of the court, amended the second count in the information by inserting the word “single” before the word “female,” as indicated therein. That the plaintiff in error then filed a demurrer to the information, upon the ground that two offenses or crimes were improperly united therein. That the charge of rape, set forth in the first count was improperly united with the charge of fornication, set forth in the second count. That the court thereupon overruled the demurrer. That the plaintiff in error then moved to quash the information for the same reasons set forth in the demurrer. That said motion the court then overruled. That the plaintiff in error then filed the following verified plea in abatement to the information: “And the said defendant, William T. Jackson, in his own proper person, comes into court here, and, having heard the supposed information herein read, and as a plea in abatement to the same, says that he did not, prior to the filing of the said supposed information herein against him, have a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer, upon the charges stated in said supposed information, or either of them, or upon any charge whatever; and that he has never waived his right to such examination; and that he is not a fugitive from justice, within the meaning of the constitution and laws of the United States;” wherefore he prays judgment of the said supposed information, and that the same may be quashed. That the district attorney thereupon filed a verified answer to such plea, to the effect: “And now comes the state of Wisconsin, by G. R. Whitman, district attorney for Iowa county, and for answer to the plea in abatement herein denies each and every allegation thereof, and upon information and belief says that on the 6th day of August, 1894, one Mildreth Daniels made complaint on oath in writing, before H. Pitts, a justice of the peace in and for Iowa county, as follows, to wit: ‘State of Wisconsin, County of Iowa--ss.: State of Wisconsin v. William T. Jackson. Mildreth Daniels, being duly sworn, on oath says that on the 7th day of July, 1894, at said county, William T. Jackson, did with force and arms, in and upon this complainant, Mildreth Daniels, a female of the age of twelve years and more, to wit, the age of fourteen years, violently and feloniously make an assault, and her, the said Mildreth Daniels, then and there with force and against her will violently and feloniously ravish and carnally know, against the peace and dignity of the state of Wisconsin. Mildreth Daniels.’‘Subscribed and sworn to before me this 6th day of August, 1894. H. Pitts, J. P.’ That thereupon, and on the 6th of August, 1894, a warrant was issued, and the said defendant duly arrested, and brought before H. Pitts, justice of the peace aforesaid. That thereupon, by consent, adjournment was taken until August 9, 1894. That on said 9th day of August, a change of venue was taken from said justice to A. S. White, a justice of the peace in and for said Iowa county. That on said 9th day of August defendant appeared in court before said A. S. White in person and by his attorney, Calvert Spensley. That said defendant was thereupon required by said justice, A. S. White, to plead to the aforesaid complaint, which was read to him. That he thereupon pleaded not guilty. That thereupon testimony was taken, and upon said testimony justice found that the offenses charged in the complaint had been committed, and that there was probable cause to believe the defendant had committed the offenses, whereupon the defendant was bound over by said justice to appear at the next term of the circuit court for Iowa county, and held in bail in the sum of $2,000, whereupon defendant gave the required bond, and was released from custody. G. R. Whitman, District Attorney for Iowa County.” That the issue made by such plea in abatement and answer thereto was thereupon tried by the court, without a jury. That upon such trial it appeared, among other things, from the record, that the complaint was made, the warrant issued, the accused arrested and brought before Justice Pitts, and the cause adjourned to August 9, 1894, at 1 o'clock p. m., at Pitts' office, as stated in said answer. That at the time last named the accused appeared, and filed an affidavit with said Justice Pitts, of which the following is a copy: “State of Wisconsin, Iowa County--ss.: In the matter of the examination of William T. Jackson on the charge of rape, before H. Pitts, justice of the peace, William T. Jackson, being duly sworn, says that he is the William T. Jackson who is charged with the above-named offense in this matter, and further says on oath that from prejudice he believes that such justice of the peace, to wit, H. Pitts, before whom this matter is pending, will not decide impartially in the matter. Subscribed and sworn to before me this 9th day of August, 1894. Calvert Spensley, Circuit Court Commissioner, Iowa Co., Wis.” That at the close of such trial of the issue on said plea in abatement the trial court found, in effect, that the question whether the plea should be sustained or not depended entirely upon whether H. Pitts, justice of the peace, before whom the complaint was made, and who took jurisdiction of the case, made determination, when the affidavit was made by the defendant, in due form of law, for a change of venue. That Mr. White was the nearest justice of the peace or magistrate to whom the case should be sent. That upon testimony in this case he found that when said affidavit was filed before Mr. Pitts the question arose between the district attorney and the defendant's attorney as to who was the next nearest magistrate or justice to whom the case should be sent. That defendant's attorney claimed that Mr. Reynolds was the nearest magistrate, and the district attorney that Mr. White was, and that Mr. Reynolds would not have jurisdiction to hear the case if he were the nearest magistrate, because he was only a police justice of Mineral Point. That after the argument of the question before him, Mr. Pitts orally determined that Mr. White was the nearest justice. That he made out the transcript of the case up to this period himself, took it with the papers to Mr. White, who had his office in the same building, in a room not far away, delivered them to Mr. White as the next nearest justice, and came back with him into the justice's room, where he (Justice Pitts) had been sitting, and that thereupon Mr. Justice White took his place as an examining magistrate, and the case proceeded before him. That at the time Mr. Pitts took the papers to Mr. White these words were not in the MS. which he delivered to Mr. White, namely, “Further proceedings in this case were by the court removed to Justice of the Peace A. S. White,” but that, after having made determination that Mr. White was the nearest justice, and after having himself transmitted the papers, he did write the words I have just stated in his docket, which were in accordance with his determination, and which were intended by him to be a record of his determination, and that Mr. White was the next nearest justice to whom the case should be sent, and to whom the case was sent. “Such being the findings of the court, defendant filed, as conclusions of law, that the plea in abatement is not well taken, and that there was a preliminary examination.” That the defendant then moved the said court that the prosecuting attorney be required, in behalf of the state, to elect therein upon which of the two counts taken in the information he would proceed to try the defendant, and that all proceedings herein thereafter be conducted in all respects as if the said information originally contained no other than the one count upon which the prosecuting attorney shall so elect to try the defendant. That the court overruled said motion, and thereupon the defendant was arraigned, and pleaded not guilty. A jury was then duly impaneled and sworn to try the case. That the defendant thereupon renewed his motion to require the prosecution to elect upon which charge of the information he should be tried, which the court denied, and also refused to exclude the witnesses from the court room pending the trial, because the judge did not see any reason for it, and that it would delay the trial...