State ex rel. Maloney v. Proctor

• Decision Date: 14 January 1947
• Citation: 24 N.W.2d 698,249 Wis. 377
• Parties: STATE ex rel. MALONEY v. PROCTOR, Judge.
• Court: Wisconsin Supreme Court

249 Wis. 377

24 N.W.2d 698

STATE ex rel. MALONEY

v.PROCTOR, Judge.

Supreme Court of Wisconsin.

Oct. 22, 1946.

Rehearing Denied Jan. 14, 1947.

Appeal from a judgment of the Circuit Court for Dane County; Herman W. Sachtjen, Judge.

Affirmed.

Action commenced by alternative writ of prohibition by Norris E. Maloney, district attorney of Dane county, against the Honorable Roy H. Proctor, as judge of the Superior Court of Dane county, to prohibit the exercise of jurisdiction in excess of the power of said court. From a judgment quashing the alternative writ the State appeals. The facts are stated in the opinion.John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Norris E. Maloney, Dist. Atty., of Madison, for appellant.

Hall & Griffith, of Madison, for respondent.

FOWLER, Justice.

The case is an appeal by the State from the judgment of the circuit court quashing its alternative writ of prohibition to prohibit the Superior Court from proceeding to trial of a defendant in a criminal case without first holding a preliminary examination to bind the defendant over to it for trial.

The appellant claims that the court was about to exceed its jurisdiction by proceeding to try the defendant, Marion Eleanor Aasen, in a criminal case pending in that court while acting with only the jurisdiction and bound by the practice of justice of the peace courts, and that therefore upon conviction of Marion Eleanor Aasen the court would be obliged under sec. 54.03(3), Stats., to impose a sentence that a justice court is without jurisdiction to impose. (Marion Eleanor Aasen will hereinafter be referred to as ‘the defendant’.) The remedy invoked is proper in a proper case. The circuit court has power, in a proper case, to issue its writ of prohibition against the superior court. State ex rel. T. L. Smith & Co. v. Superior Court, 170 Wis. 385, 175 N.W. 927. And the writ of prohibition is proper to prohibit a court of criminal jurisdiction in excess of what a justice of the peace may exercise, when bound by justice of the peace, practice, in the conduct of criminal cases of which a justice of the peace has jurisdiction from exercising jurisdiction in excess of what a justice of the peace may exercise. State ex rel. Beck v. Baird, 238 Wis. 624, 300 N.W. 752.

The defendant was charged with fornication in a complaint alleging her to be a single female over the age of sixteen years. The penalty for the offense of fornication is six months in the county jail or a fine not exceeding $100 or both. Sec. 351.05, Stats. Of an offense so punishable a justice of the peace has jurisdiction. Sec. 360.01(5), Stats. In criminal cases brought in the superior court of which a justice of the peace has jurisdiction, the court proceeds according to justice court practice, in which no preliminary examination is held, and the court proceeds upon the complaint without an information being filed. Ch. 217, Laws of 1929, sec. 12; secs. 360.06, 360.10, Stats.

Sec. 54.03(3) provides that ‘in lieu of the penalty provided by statute, * * * under which said offender is tried, the court may commit any female person except those convicted of murder in the first or second degree to the home for women for a general or intermediate term, which term shall not exceed 5 years * * *’; and subsec. (4) of sec. 54.03 provides that all courts of record, of which the superior court is one, having jurisdiction ‘shall have the power to commit as provided in subsection (3).’

On trial of a criminal case before a justice of the peace if it shall appear from the evidence that there is probable cause to believe the defendant guilty of an offense of which the justice has not jurisdiction to impose the penalty for that offense prescribed by statute, the justice shall stop the trial and bind the defendant over to a court for trial that has such jurisdiction. Sec. 360.30, Stats. The superior court is bound to follow that practice, Sec. 12, Ch. 217, supra; Stecher v. State, 237 Wis. 587, 592, 297 N.W. 391.

When arraigned before the superior court the defendant according to the petition, the truth of which the motion to quash admits, interposed ‘a special plea in bar or in the alternative a plea of not guilty.’ The district attorney at this time called to the attention of the court, sec. 54.03(3), Stats., and requested the court to set the case down for a preliminary hearing. The court denied the request and instead set the case down for trial. When the case was called...