State ex rel. Brill v. Spieker

• Decision Date: 08 November 1955
• Parties: STATE ex rel. Lawrence BRILL, Plaintiff in Error, v. Rudolph A. SPIEKER, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 906

72 N.W.2d 906

271 Wis. 237

STATE ex rel. Lawrence BRILL, Plaintiff in Error, v. Rudolph A. SPIEKER, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 8, 1955.

Baumblatt & Goodman, Marvin Shovers, Racine, for plaintiff in error.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Dexter D. Black, Dist. Atty., Racine County, Edward A. Krenzke, Sp. Asst. Dist. Atty., Racine, for defendant in error.

MARTIN, Justice.

Appellant states the first question involved as follows:

Can the State upon a preliminary hearing be compelled to produce an exhibit previously offered in evidence on a John Doe hearing, to show the innocence of the defendant?

It is conceded that:

'Where a person is detained pursuant to the order of the court made upon a preliminary examination, the only question raised by a writ of habeas corpus is, 'Was there any evidence for the magistrate to act upon and whether the complaint charged any offense known to the law?' When it is discovered that there is competent evidence upon which the examining magistrate might act in determining the existence of essential facts, jurisdiction is established and in such case the defendant will not be discharged. * * *' State ex rel. Morgan v. Fischer, 1941, 238 Wis. 88, 91, 298 N.W. 353, 354.

It is appellant's position that the State refused to present its best evidence to prove intent to defraud, which is one of the essential elements of the crime of obtaining money by false pretenses. At the preliminary examination counsel for appellant attempted to have the State produce a document in its possession, purported to be a statement of all the claims against the Gillen Street property, which document constituted 'the figures presented to me' upon which Lawrence Brill claimed he relied in making the statement at the foot of Exhibit B. The court ruled:

'I order that he need not produce that because the Court has no authority to make such a production.'

Appellant urges that this was error, since the production of the document in question was the best evidence of his guilt or innocence. We cannot agree. The evidence which was presented was sufficient to show that it was probable that the crime was committed and that appellant was probably guilty. The State is not required to produce all its evidence, or its best evidence, but only that which is sufficient to provide a substantial ground for the exercise of judgment by the committing magistrate. State ex rel. Marachowsky v. Kerl, 1951, 258 Wis. 309, 45 N.W.2d 668; State ex rel. Morgan v. Fischer, supra.

The intent to defraud need not be proved by direct evidence; it may be inferred from all the circumstances proved. State v. Hintz, 1930, 200 Wis. 636, 229 N.W. 54, 55. There was evidence produced at the preliminary examination that all the records of Able Home Builders were in the files at appellant's office; that White and Brill went over such records together in preparing Exhibit B; that the records so consulted included the unpaid Petak bill; that Petak had presented his...