State ex rel. Evanow v. Seraphim
| Decision Date | 01 October 1968 |
| Citation | 161 N.W.2d 369,40 Wis.2d 223 |
| Parties | STATE of Wisconsin ex rel. Lionel John EVANOW, Appellant, v. Honorable Christ T. SERAPHIM, County Judge, Respondent. |
| Court | Wisconsin Supreme Court |
Howard G. Brown, Shellow, Shellow & Coffey, Milwaukee, for appellant.
Bronson C. La.Follette, Atty. Gen., Madison, David J. Cannon, Milwaukee County Dist. Atty., Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for respondent.
The sole question in this case is whether it appears from the written complaint that there is probable cause to believe that the appellant is guilty of burglary. Wisconsin statutory law requires that the complaint itself set forth the grounds for probable cause. 1 This differs from federal court procedures where supporting affidavits may be used for the showing of probable cause. 2
This does not limit the right of the magistrate to ask questions and receive answers at the hearing before him to satisfy himself that probable cause does exist. However, when the adequacy of the written complaint is challenged, the Wisconsin statute requires that there must be facts in the written complaint which are themselves sufficient or give rise to reasonable inferences which are sufficient to establish probable cause. 3 Admittedly, the complaint in this case is no model of careful draftmanship. Does it, however, meet the test of minimal adequacy, not in a hypertechnical but in a common sense evaluation, in setting forth the essential facts establishing probable cause? 4
Defendant complains that the name of the complainant is given, but he is not identified as a police officer. On oral argument defendant's counsel stated that he knew complainant to be a police officer, but argued such identification must be in the written complaint, citing the Pflanz case. 5 However, in that case, the court pointed out that the charge of filing fraudulent state income tax returns fell into a special category of cases that 'requires a reconstruction of the taxpayer's income from many individually unrevealing facts.' In such special situation, the complainant's identity as a tax agent of the tax department became crucial as establishing the basis on which a magistrate could accept his judgment that a crime had been committed. The court referred to an earlier case involving paternity as 'essentially different.' 6 Here we deal with the charge of burglary, a readily comprehensible charge of breaking and entering to burglarize. We do not deal with any limited right to examine tax records or special competency to interpret 'individually unrevealing facts.' The fact, known to the defendant, that complainant was a police officer is not an 'essential fact' necessarily set forth in the complaint. Similarly, the objection, based upon the Pflanz case, that there is no allegation by the complainant that '* * * he made any investigation' falls. If the statements of the two alleged co-participants in the burglary had been made to owner of the burglarized residence, she might well have been the complainant. A police investigation is not a requirement for issuance of a warrant in every case.
Defendant challenges the allegation in the complaint that complainant 'believes the sources of said information to be truthful' as inadequate. However, we deal not only with facts stated but with reasonable inferences that can be drawn therefrom. The complaint makes clear that the information given to the complainant came from two named individuals who state that they entered the building with the defendant in the alleged burglary. 7 It is a reasonable inference that two individuals who implicate themselves as well as a third co-participant in a crime are telling the truth. Admissions against one's interest are not inherently untrustworthy. That the self-implicators may be known criminals with long records does not destroy reasonableness of an inference of truthfulness. It would be too much to require that self-identified partners in a burglary be established to be pillars of the community or leaders in the scout movement before their admissions could be found to have the ring of truth. Defense counsel turns this argument around, contending that it '* * * offends any sense of fairness to give such credence to alleged felon co-defendants without other confirmation.' That issue as to credence or credibility is for the trial. The hearing as to probable cause before the magistrate is not a preliminary trial. It is not the proper forum to debate and determine issues as to credibility and weight of evidence once essential facts as to probability have been established.
Finally, defendant complains that statements in the complaint as to the offense committed 'are made in the language of the statute with the addition of the time and place of the alleged offense.' 8 The statute involved (sec. 943.10(1)(a), stats.) 9 sets forth in language any lay person can understand what the crime of burglary involves. We see no objection to the use of statutory language where it adequately states exactly what the defendant is charged with doing. As used here, the words used in the complaint are a clear and complete description of exactly what the defendant is alleged to have done. He is informed of the exact nature of the charge against him, and that is a primary purpose of the written complaint in criminal cases.
The defendant under the Wisconsin statute involved is entitled to have set forth in a written complaint the 'essential facts' constituting the offense charged. This does not entitle him to some encyclopedic listing of all evidentiary facts upon which the state intends to rely for his conviction. It requires only that essential facts be set forth, preferably concisely and certainly clearly.
In university journalism classes, students are taught that the lead paragraph to a news story must be made '* * * complete and clear through answering the questions that immediately arise--the so called 'Five W's-- what, who, where, when, why.' 10 It is such basically essential queries that a criminal complaint is statutorily expected to answer. What is the charge? Who is charged? When and Where is the offense alleged to have taken place? Why is this particular person being charged? Actually, there is a sixth 'W.' As the journalism professor puts it, 'Unless the source (of the news) is obvious, the reader always asks at once, 'Who says so? " 11 Where a complaint is filed on the basis of information and belief, this requires setting forth of enough underlying facts to permit the reasonable inference that the sources of information are probably truthful. 12 In...
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