Johnson v. State
| Decision Date | 15 February 1949 |
| Citation | 36 N.W.2d 86,254 Wis. 320 |
| Parties | JOHNSON v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to review a judgment of the Circuit Court for Fond du Lac County; C. E. Rinehard, Circuit Judge.
Leonard Paul Johnson was convicted of taking improper liberties with minors, and he brings error.-[By Editorial Staff.]
Judgment affirmed.
Plaintiff in error (hereafter referred to as defendant) was convicted on May 29, 1948, of the crime of taking improper liberties with minors in violation of sec. 351.41, Stats., and sentenced to a term of two years in the Wisconsin state prison at Waupun. The action was commenced by issuance of a warrant of July 22, 1947.
On July 19, 1947, Richard, age nine, and his brother, Ronald, age seven, were playing in a park about two and half blocks from their home in Found du Lac, Wisconsin. While there a man whom they described as tall, slim, and dark with a funny nose approached them and offered them rides on his motorcycle. The boys said that the motorcycle was a blue Harley-Davidson. They also seemed to be definite about the fact the man was wearing a blue cap and brown moccasin shoes. Richard went for a ride first; then Ronald. The boys were not sure what time this happened. However, they left the park about 5:30 and arrived home at a quarter to six.
The boys told their mother about having rides on a motorcycle. She scolded them for riding with strangers. When their father arrived home, they told him about the rides, too. They told him that the man had taken them out to a place in the city dump and behind a clump of bushes, that he asked to see their private parts and offered to show them his. Ronald said that he showed the man his. The boys gave a description of the man and his motorcycle to their father who reported the affair to the police. On July 21, 1947, the police suggested that the father have the boys take a look at a man working at a filling station. When the boys passed the filling station the defendant was recognized as the man with whom they had been at the park. That evening the police had the defendant at the police station for questioning. Richard observed him and another man. He picked out the defendant as the man who had given himself and his brother rides.
The warrant issued on July 22, 1947, charged the defendant with having attempted to commit the felony of taking improper liberties with a minor. Preliminary examination was set for July 31, 1947. In the meantime the boys told their father more of what had occurred. They disclosed that the defendant had taken down their trousers and played with their privates. A second complaint was then made charging the defendant with the crime of taking improper liberties with the privates of a minor by the use of his hand.
At the preliminary examination in municipal court the district attorney pointed out that there were two complaints on file against the defendant and moved that the first complaint charging the attempt to commit the felony be dismissed. On the objection of the defendant's attorney, the court denied the motion. As a result of the preliminary examination the defendant was bound over to the circuit court. On May 28, 1948, the district attorney filed an information containing two counts. In the first count the charge was taking improper liberties with the privates of minors, Richard and Ronald, by the use of the hand; in the second count the charge was an attempt to commit the felony of taking improper liberties with a minor.
In the circuit court the defendant waived a jury. On a plea of not guilty there was a trial to the court. At the trial defendant's attorney moved that the prosecution be required to elect which count of the information it would proceed on. Defendant also moved the court to quash the information on the ground that the two counts were contradictory. Both motions were denied.
Defendant was found guilty of taking improper liberties with the privates of both minors in violation of sec. 351.41, Stats., which provides:
He was sentenced on the conviction to two years in the Wisconsin state prison at Waupun.
On June 23, 1948, by a writ of error the judgment and sentence against him were brought to this court by plaintiff in error.
J. E. O'Brien, of Fond du Lac, for plaintiff in error.
Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Jerold E. Murphy, Dist. Atty., of Fond du Lac, for defendant in error.
The defendant on his appeal contends that the trial court erred in several particulars: (1) in overruling the plea in abatement because of no preliminary examination and no waiver of it; (2) in refusing to quash the information and to require the prosecution to elect between two alleged contradictory counts in the information; (3) in imposing a determinate sentence of two years imprisonment in Waupun; (4) in finding the defendant guilty on the evidence.
(1) The point sought to be made that there was no preliminary examination is without merit. The record shows that a preliminary examination was held. At that time the district attorney pointed out that all the facts had been brought out since the first complaint charging an attempt to commit a felony was lodged. He asked that the first complaint be dropped and the proceeding be on the second complaint which charged the offense of taking improper liberties with the minor boys. On the objection of the defense attorney, the motion was denied.
It appears, then, that defendant's criticism is directed to the fact that no preliminary examination was held expressly on the complaint charging the commission of the crime. Defendant contends that without an examination devoted to that complaint the district attorney could not charge that crime in the information. It is well settled that this is not the law. In State ex rel. Kropf v. Gilbert, 213 Wis. 196, 201, 251 N.W. 478, 479, this court stated:
‘* * * it must be noted that under section 355.17, Stats., a district attorney, in...
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