State ex rel. Isenring v. Polacheck

• Citation: 77 N.W. 708,101 Wis. 427
• Parties: STATE EX REL. ISENRING v. POLACHECK.
• Decision Date: 16 December 1898
• Court: United States State Supreme Court of Wisconsin

101 Wis. 427

77 N.W. 708

STATE EX REL. ISENRING

v.POLACHECK.

Supreme Court of Wisconsin.

Dec. 16, 1898.

Error to circuit court, Milwaukee county; D. H. Johnson, Judge.

Charles Polacheck, charged with bribery, was released on habeas corpus, and the state, on the relation of F. G. Isenring, brings error. Reversed.A. C. Brazee, Dist. Atty., and A. C. Umbreit, Asst. Dist. Atty., for plaintiff in error.

Herbert Kinne (H. J. Killilea, of counsel), for defendant in error.

CASSODAY, C. J.

It appears from the record, or the legislative journals, of which courts take judicial notice, in effect, that the defendant in error was elected to the assembly in November, 1896; that he served as a member of that body during its several sessions in 1897; that pursuant to a joint resolution of the senate and assembly both houses adjourned, or took a recess, from April 24, 1897, to August 17, 1897; that in accordance with a joint resolution of the two houses the senate and assembly each adjourned sine die August 20, 1897; that during such recess, and on August 11, 1897, a complaint was filed with a committing magistrate of Milwaukee by one Charles Elkert, charging the defendant in error with bribing, or attempting to bribe, said Elkert, as an alderman of Milwaukee, April 29, 1897, by promising to give him $300 if he would vote in a certain way; that a warrant was thereupon issued, and the defendant in error arrested, and brought before such magistrate, and upon examination had he was held and required to recognize in the sum of $1,000 for his appearance at the next term of the municipal court, and that the defendant in error thereupon, and on August 12, 1897, gave the requisite bail for such appearance, and was thereupon allowed to go at large; that October 5, 1897, the district attorney filed an information in the municipal court charging the defendant in error with the offense mentioned, and the defendant in error was on the same day arraigned thereon in the municipal court, and pleaded not guilty to such charge; that thereupon the cause was continued to the December term of that court for 1897, and then continued successively, first to the February term, and then to the April term of that court for 1898; that during that term the sureties on the bond surrendered the defendant in error to the sheriff; that the defendant in error thereupon, and upon his verified petition, stating, in effect, the facts mentioned, obtained from the circuit court a writ of habeas corpus; that upon a return to such writ made by the sheriff, and a demurrer thereto, the circuit court discharged the defendant in error from such imprisonment. To review such judgment the plaintiff in error, on July 26, 1898, sued out this writ of error.

It is conceded that under the recent enactment the writ of error was properly granted. Laws 1889, c. 239, § 1; Sanb. & B. Ann. St. § 3437a; St. 1898, §§ 3043, 3044. The defendant in error, however, moves to dismiss the writ for the reason that the plaintiff in error has failed to give the bond mentioned in the section last cited. This is put upon the ground that writs of error in criminal cases may issue, and the proceedings had thereon may be the same, as provided by law in civil cases (Rev. St. § 4724); and that, as no writ of error is effectual in a civil case without filing the requisite bond, so it is not in a criminal case without filing such bond, even where the writ is sued out by the state. But no general words in a statute can operate to devest the state of its rights or remedies. U. S. v. Herron, 20 Wall. 251. It is upon this theory that no suit can be maintained against a state without its express consent. Houston v. State, 74 N. W. 113, 98 Wis. 487. Besides, the statute expressly exempts the state from giving an undertaking on an appeal. The motion to dismiss the writ of error is denied.

2. The constitution provides that “members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.” Const. Wis. art. 4, § 15. Most state constitutions have similar provisions, and so has the constitution of the United States. Const. U. S. art. 1, § 6. It is contended on the part of the state that the charge against the defendant in error is felony, and hence comes within the exception mentioned in the constitutional provision quoted. True, the offense charged is punishable by imprisonment in the state's prison (Rev. St. § 4475; St. 1898); and the statute declares that an offense so punishable shall be construed to mean a felony (Rev. St. § 4637; St. 1898). It was held by this court at an early day that “an offense not felony at common law will not be construed a felony by statute, unless by express words or by necessary implication.” Wilson v. State, 1 Wis. 184. See, also, Nichols v. State, 35 Wis. 310; State v. Hammond, Id. 318. But the statutes referred to were, it is believed, all enacted since the adoption of the constitution. It seems to be conceded, as the law is, that bribery was not a felony at common law. 1 Bish. New Cr. Law, §§ 614, 615; 2 Bish. New Cr. Law, § 87; Walsh v. People, 65 Ill. 58. It is not claimed that there was any statute in force in the territory making bribery a felony at the time of the adoption of the constitution. The word “felony” in the provision of the constitution quoted must be limited to such offenses as were felonies at the time the constitution was adopted. Jackson v. State, 81 Wis. 131, 51 N. W. 89;Klein v. Valerius, 87 Wis. 60, 61, 57 N. W. 1112. We must hold that the offense charged does not come within the exception named in the constitution.

3. The defendant in error was arrested during the recess of the legislature, and six days before the time of its meeting, August 17, 1897. The next day he had his examination, and gave bail for his appearance at the next term of the court. The information was not filed until 41 days after the legislature had adjourned sine die. To that information he pleaded not guilty, and thereupon the cause was continued from time to time until the habeas corpus proceedings in question. In the petition of the defendant in error for the writ of habeas corpus he states that at the time of his arrest he had claimed, and still claims, his privilege from arrest, under and by virtue of the constitutional clause quoted. Had he properly claimed his privilege when he was brought before the police court, he might have been discharged on motion or plea in abatement. Holiday v. Pitt, 2 Strange, 985; Lyell v. Goodwin, 4 McLean, 29, Fed. Cas. No. 8,616; Coxe v. McClenachan, 3 Dall. 478;Miner v. Markham, 28 Fed. 387;Anderson v. Rountree, 1 Pin. 115-119;Larned v. Griffin, 12 Fed. 590. But there is nothing in the return of the sheriff to indicate that he ever made any such claim in the police court or the municipal court, and the court discharged him on a demurrer to the return. There is no bill of exceptions. On the record, therefore, he appears to have voluntarily given bail, and subsequently pleaded not...