State ex rel. Durner v. Huegin
| Decision Date | 30 April 1901 |
| Citation | 85 N.W. 1046,110 Wis. 189 |
| Parties | STATE EX REL. DURNER, SHERIFF, v. HUEGIN. STATE EX REL. DURNER, SHERIFF, v. AIKENS. STATE EX REL. DURNER, SHERIFF, v. HOYT. |
| Court | Wisconsin Supreme Court |
1. Upon the review in this court of a case upon appeal or writ of error, a proper party to such appeal or writ is entitled to be heard by counsel regardless of whether that will, for the time being, recognize him as having a status which is one of the very matters to be decided on such review.
2. If, in a habeas corpus suit against a sheriff, he is required to restore his prisoner to liberty, he is a party aggrieved within the rule that only such a party is entitled to be heard on appeal or review on writ of error.
3. The statutory and judicial policy which precludes a private attorney from appearing for the state in a criminal case in a trial or appellate court except by a special appointment for that purpose, does not apply to habeas corpus proceedings.
4. While an attorney cannot appear on the side of the state in a habeas corpus suit at public expense, he may appear by request of the proper officer at private expense, to represent the interests of the state, and he may appear regardless of such consent to represent the person charged with the wrong.
5. Regardless of what a habeas corpus proceeding should be called under the Code, which divides all judicial proceedings into actions and special proceedings, it is to all intents and purposes a civil suit--a proceeding in the nature of a civil action--in which the party seeking to establish his right to personal liberty is plaintiff within the meaning of section 2601, Rev. St. 1898, regardless of the name by which such a party is commonly known, and the person charged with the wrong is an adverse party, to all intents and purposes a defendant, regardless of the name by which such a person is commonly known in such a proceeding.
6. An order or judgment in a habeas corpus suit is res adjudicata as to the person charged with unlawfully restraining another of his liberty, till reversed in some proper proceeding.
7. A necessary party to a judicial proceeding as a representative of public authority, having no interest in the litigation except to vindicate such authority, is a party in interest and may be a party aggrieved within the meaning of the appeal statute and the practice on review on writs of error.
8. A warrant of commitment for trial which states the offense charged with convenient certainty is sufficient if good in all other respects.
9. The formal language, “against the peace and dignity of the state of Wisconsin and the statutes in such case made and provided,” or equivalent formal words, is unnecessary to either a criminal complaint or warrant of commitment for trial.
10. The rule of convenient certainty as to describing the offense in a warrant of commitment does not require the facts to be stated in detail. A statement thereof according to their legal effect is sufficient.
11. The description of an offense in a warrant of commitment by its generic name, if it has one, whether the offense be statutory or one known to the common law, states by reasonable inference all the facts requisite to such offense.
12. The statutory form for a commitment found in section 4774, Rev. St. 1898, is satisfied by the use of language including all material elements, though such language departs from the particular wording of the form.
13. The rule that a form prescribed by statute must be strictly followed, does not mean literally followed unless the statute clearly so indicates. That is not the case with section 4774, Rev. St. 1898.
14. Upon proceedings before a committing magistrate being properly brought to the attention of the court for review in habeas corpus proceedings, the court has jurisdiction to examine into the sufficiency of the complaint to charge a criminal offense, and of the evidence as regards whether it will admit of a reasonable inference of the existence of the ultimate facts necessary to hold the person charged for trial, i. e., that the offense was committed and that there is probable cause for believing the accused to be guilty thereof.
15. A habeas corpus suit reaches only jurisdictional error. It does not reach beyond the commitment to the proceedings leading up thereto where the person in custody is detained by virtue of the final judgment or order of a court having jurisdiction of the subject-matter and the person. But such is not the case where the person in custody is being held on a commitment for trial.
16. A preliminary examination is not an action. The determination thereof is not a final judgment. The proceeding is not according to the course of the common law; it is purely statutory, and compliance with the statute is requisite to jurisdiction at every step.
17. An examination to determine whether a criminal prosecution shall be commenced is a judicial proceeding in that, so far as the magistrate acts within his jurisdiction, his decision is as binding for the purposes of such proceeding when it is right as when it is wrong. But, like the situation where a board is authorized by statute to act in a quasi judicial capacity upon evidence, if there is no evidence reasonably permitting of action, a decision upon a contrary theory is in excess of jurisdiction.
18. Where an examining magistrate acts upon evidence, and such evidence, looking at it from the most favorable standpoint, will not reasonably permit of such action, the error is jurisdictional, strictly so called, remediable by writ of habeas corpus, within the rule that such errors only can be reached by such writ.
19. The doctrine that, where concert of action is necessary to an offense, a charge of criminal conspiracy does not lie, does not apply where the unlawful agreement is of itself an offense, but applies only where the agreement and the consummation thereof are so closely connected that the two constitute really but one offense, as in the case of the offense of adultery or that of bigamy.
20. Where concert is not a mere part of a criminal act, but is in aid of it and is itself criminal, the charge of conspiracy will lie against those concerting together to perpetrate such act, though only one of the parties, or neither one alone, could effect such purpose.
21. When a complaint charges the offense of conspiracy in the language of the statute, and a conspiracy to carry out the particular purpose of such conspiracy in a particular way is also charged, accompanied by a statement of overt acts pursuant to the conspiracy, the latter part may be rejected as surplusage in construing the complaint, but the two charges of conspiracy may be read together as charging a conspiracy of the nature indicated by the particular allegations as regards the method adopted for effecting the criminal purpose.
22. A complaint stating that three persons, naming them, concerted together, using substantially the language of the statute, for the purpose of maliciously injuring another in his business, describes the conspiracy made criminal by section 4466a, Rev. St. 1898.
23. An agreement between several independent concerns, each publishing a newspaper and furnishing thereby means for advertising, to compel a fourth person engaged in like business to reduce his rates for advertising or lose customers, indicates a malicious purpose to injure the business of the latter within the meaning of section 4466a, Rev. St. 1898.
24. If section 4466a be regarded as describing a conspiracy between owners of independent enterprises to control the rates charged in their line of work in any locality, great or small, it is not unconstitutional. However, it cannot be so regarded, for it makes the malicious purpose to injure an essential.
25. Several persons, conducting independent business enterprises, may, in the absence of a statute, combine to control prices for the purpose of promoting their individual interests, and in their operations to that end impoverish a rival and drive him out of business, there being no malicious intent in their conduct, using the term in the sense of malice in law. Section 4466a does not go that far.
26. All agreements to maliciously injure another in any way are contrary to the policy of the law. Legislative authority is ample to outlaw such agreements to the extent of making the participants therein liable civilly and criminally.
27. A conspiracy to wrongfully injure another is actionable at the common law if executed to the damage of another, whether that other would have a remedy if the act were committed by a single person or not, or whether one person could commit such injury alone.
28. The doctrine that an act which is not actionable if done by one is not when done by many, is not the law of this state. Neither is the doctrine, as applied to a combination of persons to wrongfully injure another, that an act, lawful without malice, does not become unlawful by adding such element.
29. A combination of persons to injure another without any just cause, such as an injury that is not an incidental effect of the promotion of the legitimate interests of the members of the combine, is a conspiracy to inflict a malicious injury upon another at common law, and is such an injury under the statute (section 4466a, Rev. St. 1898) if it relates to such other's reputation, business, trade or profession.
30. A combination of individuals for the purpose of inflicting a malicious injury upon another, is in effect an agreement to injure by violenceIt was the policy of the common law, as it is of the statute, to prevent such a wrong by civil and criminal liabilities.
31. The term “malicious injury” as used in the statute is synonymous with that term in the law of conspiracy independent of the statute.
32. Section 4466a, Rev. St. 1898, is a mere declaration of the common law. Its only effect is, as to the particular matters stated therein, to remove the necessity for an...
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