State ex rel. Kropf v. Gilbert
| Decision Date | 05 December 1933 |
| Citation | 251 N.W. 478,213 Wis. 196 |
| Parties | STATE EX REL. KROPF v. GILBERT, SHERIFF. STATE EX REL. FARNESS v. GILBERT, SHERIFF. STATE EX REL. ROGERS v. GILBERT, SHERIFF. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Writs of error to the Circuit Court for Columbia County; C. F. Van Pelt, Circuit Judge.
Habeas corpus by the State, on the relation of R. R. Kropf, R. H. Farness, and A. T. Rogers, against Alfred E. Gilbert, as Sheriff of Columbia County. Orders quashing the writs, and relators separately bring error.--[By Editorial Staff.]
Affirmed.
Writs of error to the circuit court for Columbia county to review orders thereof quashing writs of habeas corpus issued on petitions which were filed in that court by each of the plaintiffs in error, R. R. Kropf, R. H. Farness, and A. T. Rogers, and in which each petitioner alleged that he was being unlawfully detained in the custody of the defendant in error, Alfred E. Gilbert, who is the sheriff of Columbia County.Curkeet, Lewis & Sanborn, of Madison, for plaintiffs in error Kropf and Farness.
McGovern, Curtis & Devos, of Milwaukee (H. H. Thomas, of Madison, of counsel), for plaintiff in error Rogers.
Fred Risser, Dist. Atty., of Madison, and A. W. Kopp, Sp. Prosecutor, of Platteville, for defendant in error.
Upon a complaint which was filed by the district attorney of Dane county in the superior court of that county, and which charged the plaintiffs in error, R. R. Kropf, R. H. Farness, and A. T. Rogers, and others, with the commission of certain criminal offenses, warrants were issued for their arrest. Upon a preliminary examination, that court determined that the evidence submitted in that examination disclosed that criminal offenses had been committed, as charged in certain of the counts of the complaint, and that the plaintiffs in error and Joseph M. Boyd are probably guilty as to those offenses; and therefore held them for trial in the circuit court for Dane county on those counts, and required them to give bond for their appearance. Thereafter the place of trial was duly changed to the circuit court for Columbia county. The plaintiffs in error declined to give bail. Instead, each filed a petition in the circuit court for Columbia county for a writ of habeas corpus, to which the respondent in error made return, setting up the proceedings had and the process by virtue of which he detained the plaintiffs in error. The latter demurred to the return, and the matter came on for argument upon the record. Upon the hearing, the trial court quashed the writs of habeas corpus and held the plaintiffs in error for appearance at the then term of the circuit court for Columbia county. From that order the plaintiffs in error appeal.
[1] Upon habeas corpus proceedings to test the legality of the detention of a petitioner imprisoned under a commitment issued pursuant to the determination of an examining magistrate, after a preliminary examination, the sole issue presented is whether or not the evidence introduced on the preliminary examination established the commission of the crime charged and a reasonable probability of the commission thereof by the defendants. The reviewing court State ex rel. Durner v. Huegin, 110 Wis. 189, 237, 85 N. W. 1046, 1057, 62 L. R. A. 700;Vejih v. Redford, 182 Wis. 311, 314, 196 N. W. 228;Lundstrum v. State, 140 Wis. 141, 144, 121 N. W. 883.
[2] The counts in the complaint upon which the plaintiffs in error were held for trial charged them with criminally aiding and abetting the fraudulent conversion and embezzlement by Joseph M. Boyd, at specified times during the course of two years, of bonds and money of the aggregate value of $231.800, which were the property of the Beecroft Building Company, and the disbursement and safe-keeping of which had been intrusted to Joseph M. Boyd. In that complaint plaintiffs in error were also charged with three violations of the Blue Sky Law (St. 1931, § 189.01 et seq.). As far as the particular offenses charged in that complaint are concerned, it must be noted that under section 355.17, Stats., a district attorney, in filing an information, is not restricted to the crime stated in the complaint made before the examining magistrate, but that he may file an information setting forth the crime committed according to the facts ascertained on such examination, whether it be the offense charged in the complaint upon which the examination was had or not. Dahlgren v. State, 163 Wis. 141, 157 N. W. 531;Bianchi v. State, 169 Wis. 75, 171 N. W. 639;Faull v. State, 178 Wis. 66, 189 N. W. 274. Consequently the evidence on the preliminary examination must be deemed sufficient to warrant holding the plaintiffs in error for trial if it admits of finding the existence of the essential facts to constitute any criminal offense, although it was not charged in the complaint.
[3] The evidence submitted on the preliminary examination involved in the cases at bar, when construed most favorably, as it must be to determine whether there was any substantial basis for the exercise of the judgment of the committing magistrate, admits of finding the following facts:
In 1928, William G. Beecroft and his family, through a corporation known as the Beecroft Building Company (hereinafter called the Beecroft Company), owned three theater properties in the city of Madison, known as the Parkway, Strand, and Orpheum. Prior to June 1, 1928, there were outstanding a lien against the Parkway of $100,000, a $280,000 bond issue against the Parkway and Strand, and a remainder of $395,000 of bonds issued against the Orpheum. The Joseph M. Boyd Company (hereinafter called the Boyd Company), an investment house, had previously financed the Parkway and Strand loans. The bonds secured by the Orpheum (which will hereafter be referred to as Orpheum 1st's), had been sold through the Central Trust Company of Illinois.
In the summer of 1928, William G. Beecroft, as president of the Beecroft Company, entered into negotiations with the Boyd Company to refinance the incumbrances on those properties so as to refund the outstanding bond issues and supply additional capital. Those negotiations resulted in a written proposal made by the Boyd Company to the Beecroft Company, which, excepting for provisions (here not material) as to the nature of the security, interest rate, insurance, collection of rents, and distribution of excess earnings, is as follows:
“Dear Doctor Beecroft: We submit the following proposition for the first and refunding mortgage loan upon your three properties, namely, the Strand Theatre, the Parkway Theatre, and the new Orpheum Theatre, for your consideration.
Amount: $925,000.00 or such amount as the Railroad Commission will pass as a Class A security. Our Mr. Rogers to be your attorney in this matter, and secure the permit for us. The bonds to be in denominations of $100, $300, $500, and $1,000.
+-------------------------------------------------------------------+
¦$395,000¦Balance due on the Central Trust Company mortgage. ¦
+--------+----------------------------------------------------------¦
¦$280,000¦Balance due on the Mifflin Realty Company mortgage. ¦
+--------+----------------------------------------------------------¦
¦$100,000¦Balance due on the Mifflin Realty Company collateral loan.¦
+--------+----------------------------------------------------------¦
¦$100,000¦To cover present floating indebtedness. ¦
+--------+----------------------------------------------------------¦
¦$ 50,000¦Our fee for refinancing. ¦
+--------+----------------------------------------------------------¦
¦$925,000¦Total ¦
+-------------------------------------------------------------------+
Note: This does not include the cost of refinancing the $395,000.00 mortgage now held by the Central Trust Company, or such amount as may remain of that loan at the time of taking it up. We reserve the right to take up this mortgage upon any interest date, according to the provisions of the Trust Deed, at our option, at an agreed price of one-half of one per cent for each year that the bond issue is to run. * * *
Maturities: Inasmuch as the mortgage to the Central Trust Company of Illinois now provides for the payment of $20,000.00 per annum upon your loan, we will not require any payments upon the principal of our mortgage for a period of five years. After which time, the maturities shall be $10,000.00 per year, payable to us. It is agreed that if the first mortgage to the Central Trust Company is taken up by us before maturity, that our loan is automatically to call for $10,000.00 to be paid each six months. The balance unpaid upon this mortgage is to become due and payable on June first, 1938.
Redemption privilege: After the first year, upon sixty days prior notice, bonds may be redeemed in part or in full on any interest date upon payment of face and accrued interest.
Permit: Borrower to secure a Class A permit from the Securities Division of the Railroad Commission, the expense of which the Boyd...
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