Johns v. State

• Decision Date: 06 June 1961
• Parties: John C. JOHNS, Plaintiff In Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 490

109 N.W.2d 490

14 Wis.2d 119

John C. JOHNS, Plaintiff In Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

June 6, 1961.

John C. Johns, plaintiff in error, was convicted of armed robbery and first-degree murder by a jury and was sentenced on March 13, 1956, to the state prison for three to thirty years and to life imprisonment. On January 20, 1955, sometime between 5:30 and 6:00 p. m. two men entered the Bungalow Tavern on West Hopkins street, Milwaukee, and said, 'This is a stickup.' The five patrons in the tavern were ordered into the men's room and while the door was closed, they heard several shots. When they came out, they found the proprietor Valentine LeBeau lying on the floor, wounded. LeBeau later died. Two of the patrons at the bar identified Johns as one of the stickup men.

Rosenak & Rosenak, Milwaukee, for plaintiff in error.

John W. Reynolds, Atty. Gen., William A. Platz., Asst. Atty. Gen., John H. Bowers, Asst. Atty. Gen., William J. McCauley, Dist. Atty., Hugh R. O'Connell, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

The actions were commenced by warrants and complaints. Johns was extradited from Illinois and after the extradition, informations were filed charging him and one Robert O'Connor with armed robbery and first-degree murder. No preliminary examination was held. Johns moved in the municipal court to remand the case to the district court for a preliminary examination. The motion was denied. Later he was arraigned and pleaded not guilty.

The first question is whether Johns was entitled to a preliminary examination. An information should not be filed until a defendant has a preliminary examination unless he waives it or is a fugitive from justice. ¹ The requirement of a preliminary examination is of statutory creation and is a personal privilege of the accused, unknown to common law. State ex rel. Durner v. Huegin, 1901, 110 Wis. 189, 85 N.W. 1046, 62 L.R.A. 700; State ex rel. White v. District Court, 1952, 262 Wis. 139, 54 N.W.2d 189. The provision dispensing the requirement of preliminary examination in the case of a fugitive from justice has been on our statute books since 1871.

It is contended that the provision dispensing with a preliminary examination in the case of a fugitive from justice is unconstitutional in that it denies equal protection of the laws and violates due process. This argument claims the classification is unreasonable and is based on no substantial and justifying distinction because once a criminal is apprehended, there is no reason for trying him any differently than any other accused and under the statute nonresidents are treated differently than residents. We find no merit in these contentions. The preliminary hearing is designed to protect the accused from hasty, improvident, or malicious prosecution and to discover whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty. Thies v. State, 1922, 178 Wis. 98, 189 N.W. 539; 14 Am.Jur., Criminal Law, p. 935, sec. 241. The process of extradition satisfies the purposes of a preliminary hearing and after an accused has been extradited, he stands in a different category or classification than one merely accused of a crime. The classification is reasonable.

Nonresidency may be incidental but it is not an essential element in the concept of a fugitive from justice. A fugitive from justice has been interpreted in the context of extradition to be 'simply a person who, having been in a state when a crime is alleged to have occurred within its borders, and being charged with the offense, is found outside of the state.' State ex rel. Krueger v. Michalski, 1957, 1 Wis.2d 644, 647, 85 N.W.2d 339, 341; citing Ex parte Reggel, 1855, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250; Biddinger v. Commissioner of Police, 1917, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193. A fugitive may or may not be a nonresident. The classification is not based upon nonresidency. A Wisconsin resident may be a fugitive from justice as well as a nonresident. There being no constitutional right to a preliminary hearing in Wisconsin or under the federal constitution, and the statute being a reasonable exercise of legislative power, it follows that a fugitive from justice is not denied due process of law by not being granted a preliminary examination after he has been extradited.

Johns argues his conviction must be reversed unless the denial of the motion was justified on the grounds he was a fugitive from justice and claims the record does not support the fact he was a fugitive. Johns relies on Hyatt v. People of State of New York ex rel. Corkran, 1903, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 but the Hyatt case is not applicable. In that case, the question of fugitive status was raised in the asylum state and it was held the accused had a right to raise that issue. In the case before us, Johns made an oral motion to remand the case for a preliminary examination. On that motion, he produced no evidence of his status. However, without objection, the assistant district attorney read into the record the extradition proceedings had in Illinois. In such proceedings, Johns had an opportunity to prove he was not a fugitive from justice and had not been in the state of Wisconsin at the time of the alleged crime. This he did not do. When Johns was brought back to Wisconsin under the warrant of the governor of Illinois pursuant to the extradition proceedings, his status was that of a fugitive, at least, there was a presumption he was a fugitive which arose from the regularity of the proceedings which included the existence of the essential facts as to a fugitive status supporting the requisition of the governor of Wisconsin and the warrant of the governor of Illinois. State ex rel. Kohl v. Kubiak, 1949, 255 Wis. 186, 38 N.W.2d 499. The defendant had the burden of proving by competent evidence he was not a fugitive from justice in order to overcome the presumption to the contrary arising from the face of the extradition warrant. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121. Such burden of proof was not met by the plaintiff in error.

Johns further contends that the presumption arising from the extradition does not necessarily prove he was a fugitive within the meaning of the constitution and the laws of the United States because he might have been extradited without being a fugitive within the meaning of sec. 955.18(1), Stats. It is true that the Uniform Extradition Act allows extradition of persons who are not considered a fugitive under the constitution and laws of the United States. Sec. 6 of that act, which is sec. 964.06, Stats., does allow the extradition of an accused who is not a fugitive from justice within the meaning of the federal constitution. In re Roma, 1948, 82 Ohio App. 414, 81 N.E.2d 612; English v. Matowitz, 1947, 148 Ohio St. 39, 72 N.E.2d 898. However, in this case Johns was not extradited under sec. 6 but under sections referring to a fugitive from justice. The affidavit for extradition recited the accused was present in Wisconsin at the time of the commission of the alleged crime and thereafter fled from the state, and the requisition of the governor for extradition stated he fled from the justice of this state and had taken refuse in the state of Illinois. Judicial notice of these documents in the office of the secretary of state may be taken. See Currie, Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wis.L.Rev. 39.

The next contention raises a question of first impression for this court. Johns did not take the witness stand in his own behalf. His counsel did not ask for any instructions covering his failure to testify and the court did not instruct the jury his failure to testify created no presumption against him. In this state, a defendant in a criminal action is a competent witness. His refusal to testify creates no presumption against him. ² It is argued that in the absence of a request, the court was under a duty to instruct the jury no presumption arose from the failure of the defendant to testify. No motion for a new trial was grounded on this alleged error and such assignment is not properly before us as a matter of right. However, since Johns has been found guilty and sentenced to life imprisonment and the question is of great importance in the administration of justice, we will consider the question.

In at least 42 states there exist statutes prohibiting any inference to be drawn from an accused's failure to testify. Wigmore on Evidence (2d ed.), sec. 488, Note 2. While these statutes vary, they fall into three basic classes and provide either (1) The failure of the defendant to testify shall not create any presumption against him, (2) such failure shall not be the subject of comment by counsel or by either the court or counsel, or (3) contain both provisions. See 30 Mich.Law Rev. 40-43. In at least three states, a statute requires the trial judge, upon request, to instruct the jury in accordance with the statute. Ind. (Burns Anno.Stat.1926), sec. 2267; Nev. (Rev.Laws 1912), sec. 7161; and Wash. (Comp.St.1922, sec. 2148).

At first blush, one would think, as contended for by Johns, it was the duty of the trial court to invariably give such an instruction in a criminal case when the defendant does not take the stand. The duty is based on the reasoning that such an instruction is favorable to the defendant, is part of the law of the case, and counsel for the accused has a right to expect the trial court to give such an instruction without any request. However, this reasoning finds very little support in the cases which have considered the problem and there exists among trial judges and trial counsel a division of opinion. It is believed the giving of such an instruction might do more harm in directing the...