McDonald v. State

• Decision Date: 20 October 1891
• Citation: 50 N.W. 185,80 Wis. 407
• Parties: MCDONALD ET AL. v. STATE.
• Court: Wisconsin Supreme Court

80 Wis. 407

50 N.W. 185

MCDONALD ET AL.

v.STATE.

Supreme Court of Wisconsin.

Oct. 20, 1891.

Error to circuit court, Ashland county; J. K. PARISH, Judge.

Samuel McDonald and John Graham, plaintiffs in error, were convicted and sentenced for the crime of assault and felonious robbery. Upon writ of error, the circuit court modified the judgment, whereupon defendants brought a second writ of error. Affirmed.

STATEMENT BY THE COURT. The plaintiffs in error were tried and convicted in the circuit court of Ashland county on an information charging them with the crime of assault and felonious robbery, under section 4375, Rev. St. The court thereupon sentenced them, respectively, to terms of imprisonment in excess of the maximum term prescribed by the statute. After two unsuccessful petitions to this court for writs of habeas corpus to procure their discharge, because of such error, (74 Wis. 450, 43 N. W. Rep. 148;76 Wis. 366, 44 N. W. Rep. 1105,) they brought the case to this court by writ of error. The only error assigned was that the sentences were in excess of the statutory limitation. A bill of exceptions had been theretofore settled and signed by the circuit judge, and deposited with the clerk of the court, but the same was not returned to this court on the writ of error. It was not actually indorsed by the clerk “Filed” until after return was made to the writ. This court reversed the judgment of the circuit court because of error in the sentences, and directed that court to pronounce the proper judgment nunc pro tunc. 48 N. W. Rep. 863. The circuit court thereupon entered the proper judgment, and resentenced the plaintiffs in error to imprisonment for terms within the statutory limits, to commence on the day the first sentence was pronounced. They thereupon sued out the present writ of error to obtain a review and reversal of such last-mentioned judgment. The bill of exceptions has been returned as a part of the record, and numerous rulings of the court are assigned as grounds for a reversal of the judgment.Rublee A. Cole and H. M. Lewis, for plaintiffs in error.

J. L. O'Connor, Atty. Gen., for the State.

LYON, J.

When return was made to the first writ of error herein, a bill of exceptions had been regularly settled and signed by the judge. It was therefore a part of the record at that time. Rev. St. § 2873. It is immaterial that the clerk had omitted to indorse the same “Filed.” If it contained exceptions which the plaintiffs in error desired this court to pass upon, they should have had it returned on the first writ as a part of the record. In contemplation of law, the whole record was before this court on the first writ, and all the rulings of the circuit court on the trial were approved by this court, down to the erroneous sentences. Such is the necessary effect of the judgment of this court directing the circuit court to resentence the plaintiffs in error without another trial. Hence the judgment of this court on the first writ is necessarily res adjudicata of all questions arising upon the record previous to the first sentence, and brings the case within the principle that successive writs of error cannot be brought upon the same judgment. In Zimmerman v. Turner, 24 Wis. 482, the court went further,and held that “when on a writ of error the judgment has been affirmed, plaintiffs in error cannot have a new bill of exceptions settled so as to present a question not presented by the former, and sue out a new writ.” It is claimed that the case of Benedict v. State, 12 Wis. 313, and 14 Wis. 423, establishes a different rule. That case, like this, was in this court on two successive writs of error. Here the analogy between the two cases ceases. On the first writ the court held that no judgment had been rendered. So it reversed nothing, but simply directed the circuit court to pronounce judgment, which was accordingly done. Then a bill of exceptions was settled and signed, and another writ of error sued out. There was but one judgment, and, as a matter of course, all exceptions taken during the progress of the cause, and preserved in the bill of exceptions, were before the court for review, and were reviewed. They could not have been properly reviewed on the first writ, because there was then no judgment. If there is any ground for criticising that case, it is that the court, on writ of error, finding no judgment, awarded a procedendo. This practice seems to rest upon the necessity of the case, and English authorities are cited in the opinion by DIXON, C. J., justifying it. We therefore decline to determine, on this writ of error, the exceptions taken before the first judgment was pronounced. We do this with less hesitation for the reason that the argument has failed to convince us that any material error occurred during the trial.

After the cause was remanded, and before the last judgment and sentences were pronounced, the plaintiffs in error severally moved the court to arrest the judgment and for a new trial. These motions were made upon two grounds. The first of these is that chapter 488, Laws of 1887, purporting to create the fifteenth judicial circuit, is not a valid law, and hence that there is no such circuit, and Judge PARISH, who was elected under that statute, is not the judge of the circuit court of Ashland county de jure or de facto. The validity of chapter 488 is challenged on two general grounds. These are: (1) That the two houses of the legislature...