Martin v. State

Decision Date24 February 1891
Citation48 N.W. 119,79 Wis. 165
PartiesMARTIN v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Ashland county.

Cole & O'Keefe, for plaintiff in error.

J. M. Clancey, Asst. Atty. Gen., for the State.

TAYLOR, J.

The plaintiff was convicted of the crime of burglary committed in the city of Ashland, in the county of Ashland. The district attorney of said county, on the 6th of June, 1889, filed in the circuit court of said county an information in the following language: “I, George P. Rossman, district attorney for said county, hereby inform the court that on the 16th day of January, in the year 1889, at said county, R. G. Martin, at the store building of R. W. French, situated in the city of Ashland, in said county, in the night-time of the same day, then and there unlawfully, feloniously, and burglariously did break and enter, with intent then and there the goods, chattels, and property of said R. W. French, then and there in said store building being found, then and there feloniously and burglariously to steal, take and carry away, against the peace and dignity of the state of Wisconsin. (2) I, Geo. P. Rossman, aforesaid, do further inform the court that on the 16th day of January, in the year 1889, at said county, F. G. Martin did, at the store building of M. Silber & Co., situated in the city of Ashland, in said county, in the night-time of the same day, then and there unlawfully, feloniously, and burglariously did break and enter, with intent then and there the goods, chattels, and property of said M. Silber & Co., then and there in the said store building being found, then and there feloniously and burglariously to steal, take and carry away, against the peace and dignity of the state of Wisconsin. Dated May 27th, 1889. GEORGE P. ROSSMAN, District Attorney.” Before any other proceedings were had in the case, the plaintiff in error, by his attorney, filed a plea in abatement, as follows: “And now comes defendant above named, and, as a plea in abatement to the information herein filed, alleges: (1) That defendant was not, prior to the filing of the information herein, examined before any magistrate, or other officer qualified by law, upon the said charge; and as to the offense set out in said information he never at any time had a preliminary examination therein, or for such offense, and has never on said charge waived the same. (2) That, on the second count in said information set forth, said defendant alleges that neither prior to the filing of the same, or at any other time, has defendant had a preliminary hearing or examination on the said charge before any magistrate or officer qualified by law to hold the same, and that the defendant has never waived the same. [Signed] F. G. MARTIN.” This plea was verified by the defendant's affidavit, as follows: State of Wisconsin, Ashland county--ss.: F. G. Martin, being duly sworn, upon oath says that he is the defendant above named, and that he has heard read the above and foregoing plea in abatement, and knows the contents thereof, and that the same is true of his own knowledge. F. G. MARTIN. Subscribed and sworn to before me this 6th day of June, 1889. W. O'KEEFE, Notary Public, Ashland County.” The only proceeding had upon said plea in abatement, appearing in the record of the trial, was as follows: “Motion by the defendant that the plea in abatement be sustained in his behalf. Motion denied, and exception by the defendant.” The further proceedings in the case were as follows: The defendant then moved “that the attorney for the state be required by the court to elect upon which count in the information he will stand upon.” This motion was also denied, and the defendant excepted; and thereupon a jury in the case was sworn, and the state produced its witnesses, and the case was tried by the jury. No witnesses were produced on the part of the defendant. Before the case was submitted to the jury, the state moved the court to withdraw from the consideration of the jury the second count in the information. The court granted the motion, and the defendant excepted. After hearing the argument of counsel and the instructions of the court, the jury returned a verdict finding the defendant guilty of the offense charged in the first count of the information; and thereupon the defendant moved in arrest of judgment, and for a new trial, on the ground that the verdict was rendered in the absence of counsel for the defendant, and upon the ground that the counsel for the state had improperly commented upon the fact that the defendant did not testify in his own behalf on the trial. This motion was overruled, and thereupon the court sentenced the defendant in the following language: “It is hereby adjudged that you, Frank G. Martin, be sentenced to be confined at hard labor in the state-prison at Waupun, by the warden thereof, for the period of four years; that the first day of your imprisonment, and the 5th day of February each year thereafter, be solitary confinement. The term of your imprisonment shall begin at noon to-day. Let the sheriff of Ashland county put this judgment into execution. Dated this 8th day of June, A. D. 1889.” The defendant excepted to the instructions of the court to the jury, and also to the rulings of the court upon the introduction of evidence on the trial. A bill of exceptions has been duly settled, in which the exceptions of the defendant are preserved.

The first error alleged by the learned counsel for the plaintiff in error is the ruling of the trial court upon his motion to sustain his plea in abatement. What the object of the learned counsel was in making such motion at the time it was made, and before a jury was impaneled to try the issues in the case, is not entirely clear. We think, however, that this court must treat the motion as having been made upon the plea itself, and upon the record therein supposed to be before the court, as of itself containing evidence sufficient to sustain such plea. There does not appear to have been any reply to the plea, either by way of demurrer or reply. It would not be just, therefore, to treat the motion as a motion asking the court to pass upon the sufficiency of the plea as a plea in abatement. Treating the motion as a motion to pass upon the question whether the plea was sustained by the evidence contained in the record in the case, we think it was properly decided that its allegations were not proved by the record.

The object of the plea was to have the court pass upon the question whether the defendant had been properly arrested and examined upon the charges contained in the information before the information against him was filed in the circuit court. Section 4654, Rev. St., as amended by chapter 173, Laws 1881, (2 Sanb. & B. Ann. St. p. 2330,) expressly provides that “no information shall be filed against any person for any offense until such person shall have had a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination; * * * but no failure or omission of such preliminary examination shall in any case invalidate any information in any court unless the defendant shall take advantage of such failure or omission, before pleading to the merits, by a plea in abatement.” When an examination of a person accused of any crime is had before a justice or other examining magistrate, and such justice or magistrate finds there is reasonable ground for believing the party charged guilty of the offense charged against him, he shall hold him to trial, and commit him to the jail of the proper county, if bail be not furnished. Sections 4792, Rev. St., (2 Sanb. & B. Ann. St. p. 2370.) And upon holding the party to bail, or committing him, the examining magistrate is required by section 4801, Rev. St., (2 Sanb. & B. Ann. St. p. 2372,) to certify and return to the clerk of the court before which the party charged is bound to appear, within 10 days after the close of the examination, all examinations, evidence, and recognizances taken by such examining magistrate. And section 4653, Rev. St., as amended by chapter 257, Laws 1889, (2 Sanb. & B. Ann. St. p. 2329,) makes it the duty of “the district attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination, as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail or become recognized or held to bail, and to 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.” The remainder of the section authorizes the district attorney to decline in certain cases to file an information against the accused. It is clear from the sections of the statutes above quoted that no information can be properly filed against an accused person until a preliminary examination has been had, as authorized and provided by law, unless the accused, upon being arrested and brought before an examining magistrate, shall waive such examination; and it is also equally clear that, under the statute, the want of such preliminary examination can only be taken advantage of by the party informed against by pleading that fact in abatement of the information before pleading to the merits. The learned counsel for the plaintiff in error was correct in filing his plea setting up that matter as a plea in abatement before pleading to the merits. The more orderly rule would be for the attorney for the state, in such case, either to demur to the plea, if he thought it insufficient, or, if sufficient, and the state denied its truth, to reply to the plea, and try the issue so formed, before proceeding to try the defendant for the...

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  • Powell v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 24, 1961
    ...was held to have been waived. It was further held that it was not error to receive a verdict in the absence of counsel. Martin v. State, 79 Wis. 165, 48 N.W. 119; Barnard v. State, 88 Wis. 659, 60 N.W. 1058; O'Bannon v. State, 76 Ga. 29, 32; Baker v. State, 58 Ark. 513, 25 S.W. 603; Huffman......
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    ...provides that "no person . . . shall be compelled in any criminal case to be a witness against himself."5 Martin v. State, 79 Wis. 165, 176, 48 N.W. 119 (1891). See also: Dunn v. State, 118 Wis. 82, 94 N.W. 646 (1903); Haffner v. State, 176 Wis. 471, 477-478, 187 N.W. 173 (1922); Werner v. ......
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    ...(White v. State, 44 N.W. 443; People v. Chapman, 62 Mich. 280; People v. Smith, 25 id., 497; State v. Sorenson, 84 Wis. 30; Martin v. State, 79 Wis. 165; In Wright, 3 Wyo. 487.) A preliminary examination is a judicial determination. (Rev. Stat., Secs. 3188, 3191, 3193, 3200, 3201; People v.......
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