State ex rel. Beck v. Duffy

• Decision Date: 27 February 1968
• Citation: 38 Wis.2d 159,156 N.W.2d 368
• Parties: STATE ex rel. Joseph BECK, Appellant, v. F. Ryan DUFFY, Jr., Judge of County Court, Branch 12, Milwaukee County, Wis., Respondent.
• Court: Wisconsin Supreme Court

Page 368

156 N.W.2d 368

38 Wis.2d 159

STATE ex rel. Joseph BECK, Appellant, v. F. Ryan DUFFY, Jr., Judge of County Court, Branch 12, Milwaukee County, Wis., Respondent.

Supreme Court of Wisconsin.

Feb. 27, 1968.

John A. Keck, Ray T. McCann, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Robert E. Sutton, Asst. Attys. Gen., Madison, for respondent.

WILKIE, Justice.

Preliminary to our consideration of the issues presented on this appeal it should be noted that it is undisputed that the writ of prohibition was the appellant's proper remedy.

We have held that the writ of prohibition may be invoked 'in cases of a non-jurisdictional error when the appeal may come too late for effective redress, or be inadequate and there is a need for such intervention to avoid grave hardship or a complete denial of the rights of a litigant.' ¹

Reaching the merits of this appeal, two issues are presented:

1. Is the attorney general properly authorized to appear in this action?

2. Are the recommencement proceedings proper?

Appearance of Attorney General in this Civil Action.

Appellant contends that the Milwaukee county district attorney, not the attorney general, is the proper party to defend this prohibition action. Ordinarily it is the duty of the district attorney to prosecute and defend all actions, civil or criminal, in the courts of his county in which the state or county is interested or a party. ² On the other hand, no statute gives the attorney general power to appear and prosecute or defend actions generally except in the supreme court. ³ In this state the attorney general is divoid of commonlaw powers and duties. ⁴ However, sec. 14.53(1), Stats., provides that the attorney general shall 'when requested by the governor or either branch of the legislature, appear for the state and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people thereof may be in anywise interested.'

The attorney general in the instant case acted as counsel pursuant to a request by Governor Knowles embodied in his letter to Bronson LaFollette. Sec. 14.12, Stats., provides that:

'The governor, whenever in his opinion the rights, interests or property of the state have been or are liable to be injuriously affected, may require the attorney-general to institute and prosecute any proper action or proceeding for the redress or prevention thereof; and whenever he receives notice of any action or proceeding between other parties by which the rights, interests or property of the state are liable to be injuriously affected, he shall inform the attorney-general thereof and require him to take such steps as may be necessary to protect such rights, interests, or property.'

The rights and interests of the state obviously would be injuriously affected if the writ of prohibition in this case became absolute. Therefore, the governor's request is proper; so, too, is the attorney general's appearance in this civil action.

Recommencement.

Appellant argues that the state cannot recommence this criminal action. The argument is without merit. The recent case of Tell v. Wolke ⁵ is directly on point and controls the instant case. Tell discussed sec. 955.20, Stats., which provides:

'Second examination. If a preliminary examination has been had and the defendant has been discharged for want of evidence, and the district attorney afterwards discovers evidence sufficient, in his judgment, to convict the defendant, he may cause another complaint to be made, and thereupon further proceedings shall be had.' ⁶

Tell held that sec. 955.20, Stats., was directory only and related solely to the duty of district attorneys and did not provide an accused with a defense or operate as a bar to subsequent proceedings involving the same offense. ⁷ The court stated:

'Nor do we think the intent of sec. 955.20, Stats., is to give a discharge on a preliminary hearing the effect of an acquittal after a trial on the merits. * * * The preliminary hearing is not a trial in the sense the accused has been put in jeopardy nor is the discharge from custody upon the failure of proof at a preliminary examination res judicata on the district attorney any more than a bind over for trial is res judicata of the defendant's guilt. Montgomery v. State (1906), 128 Wis. 183, 107 N.W. 14. The doctrine of res judicata is not applicable to preliminary examinations.' ⁸

In dismissing the appeal from Judge Clark's dismissal order, entered after the bindover of this defendant following the preliminary examination on the first complaint issued in this matter, this court recognized the principles set forth in Tell, when it stated:

'The respondent (appellant here) having conceded in his brief that the state may re-issue the warrants, the court concluded that jeopardy has not attached and that the order appealed from is not a final order. It follows that the order is not appealable, and therefore the motion to dismiss the appeal is granted, without costs.'

To try to distinguish Tell from the instant case because the interval between arrests in the Tell case was one week as compared to several years in this matter is inapposite. To so distinguish would be to punish the state for attempting to protect its interests by appeal. The actual interval between the dismissal of the appeal and the reissuance was approximately five months, an interval that cannot be characterized as unreasonable.

Appellant argues that the evidence to be adduced during the second preliminary will be the same as that introduced during the first. Even if this is true, and for purposes of this appeal no such determination need be made, the court in Tell explains why this contention has no merit:

'An additional reason exists why the language of sec. 955.20, Stats., cannot be construed as prohibiting the making of a second complaint and holding an examination upon the same evidence. The state has...