O'Keefe v. State

• Decision Date: 11 April 1922
• Citation: 177 Wis. 64,187 N.W. 656
• Parties: O'KEEFE v. STATE.
• Court: Wisconsin Supreme Court

177 Wis. 64

187 N.W. 656

O'KEEFE

v.STATE.

Supreme Court of Wisconsin.

April 11, 1922.

Error to Circuit Court, Ozaukee County; Martin L. Lueck, Judge.

Joseph O'Keefe was convicted of taking indecent liberties with a female under the age of 16, and he brings error. Affirmed.

Plaintiff in error, hereinafter called the defendant, was convicted of an offense under section 4588a (taking indecent liberties with a female under the age of 16), and brings writ of error to review the judgment.W. J. Kershaw, of Milwaukee, for plaintiff in error.

Wm. J. Morgan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Albert W. Grady, Special Dist. Atty., of Port Washington, for the State.

OWEN, J.

[1] The evidence on behalf of the state shows that, on the 23d day of July, 1918, the defendant called at a farmhouse in Ozaukee county for the purpose of soliciting subscriptions to a religious magazine. The complaining witness, a female under the age of 16, was alone in the house. During the course of his visit he took indecent liberties with her, the detailsof which will not be recited. He was arrested upon a charge of assault with intent to commit rape. A preliminary hearing was had, and he was bound over to the circuit court.

On the 31st day of August, 1918, the district attorney filed an information against him charging him with an assault with intent to commit rape. Thereafter, and on the 3d day of December, 1919, the district attorney filed an amended information charging him with the offense of taking indecent liberties with a female under the age of 16 years, contrary to section 4588a of the Statutes. He was brought to trial upon this charge on the 15th day of April, 1920. He filed a plea in abatement, claiming that he had never had a preliminary examination on the offense charged in the amended information. The plea in abatement was overruled, and this is the principal error assigned.

Section 4653, Stats., authorizes the district attorney to--

“inquire into and make full examination of all facts and circumstances connected with any case of preliminary examination as provided by law, * * * and file an information setting forth the crime committed, according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not.”

Section 2829, Stats., provides that:

“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

In Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. Rep. 954, a preliminary examination was had on a complaint charging incest. An information was filed containing the counts of incest and rape, and a conviction was had on the latter count. A plea in abatement was filed on the ground that no preliminary examination was had on this count. In the opinion it was said:

“The facts disclosed, upon the preliminary examination of the defendant, warranted the district attorney in filing an information against the defendant for rape committed against the person of his daughter, and he had the right to add a count for the crime of incest, under section 4582, charged in the complaint on which the examination was held, to meet the legal aspects of the evidence as it might be produced at the trial. * * * Both counts were founded on...