State ex rel. Morgan v. Fischer

• Decision Date: 29 May 1941
• Parties: STATE ex rel. MORGAN v. FISCHER, Sheriff.
• Court: Wisconsin Supreme Court

238 Wis. 88

298 N.W. 353

STATE ex rel. MORGAN

v.FISCHER, Sheriff.

Supreme Court of Wisconsin.

May 29, 1941.

Error to Circuit Court, Dane County; August C. Hoppmann, Judge.

Affirmed.

This action was begun by the issuance of a writ of habeas corpus by the relator, J. Saxton Morgan, out of the circuit court for Dane county, on January 31, 1941. The sheriff in whose custody the relator was duly made return to the writ, whereupon the district attorney moved that the writ be quashed. From the order quashing the writ, entered on February 28, 1941, the plaintiff in error, hereinafter called the defendant, brings this writ of error.

The facts will be stated in the opinion.

Sauthoff, Hansen, O'Brien & Kroncke, of Madison, for plaintiff in error.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Norris E. Maloney, Dist. Atty., and Henry H. Behnke, Asst. Dist. Atty., both of Madison, for defendant in error.

ROSENBERRY, Chief Justice.

On the evening of September 2, 1940, at about 745 p. m., Ernest Nelson, Robert Lanz and Lawrence Drew were walking on the right side of the Middleton Road toward Middleton. The three were walking abreast, with Drew nearest the concrete. At the time of the accident Drew was walking on the shoulder about two or three feet from the edge of the concrete. Two cars passed them safely. A third car struck Drew, who died from the effects of the blow. After the accident two wheels of the car were seen to be well off the concrete. At the time of the accident the speed of the car was estimated to be over fifty-five miles per hour. The defendant admitted that he was the driver of the automobile which struck Drew.

Shortly after the accident he was observed by police officers, who testified that at that time he was unsteady on his feet, could not walk straight and staggered and he had the odor of alcohol on his breath. Later he was given tests for drunkenness by the sheriff and Officer Kelzenberg and the latter testified that Morgan was unable to stand on either foot with his eyes closed and his arms outstretched and that he was unable to touch the tip of his nose with either index finger with his eyes closed. The officer testified that Morgan was under the influence of intoxicating liquor at the time of the accident. After the accident the defendant gave a written consent to the taking of a blood alcohol test, which upon examination disclosed that there was 1.56 milligrams of alcohol per cubic centimeter of blood. Doctor Kozelka testified that if a man had taken no alcohol since seven o'clock p. m. and the alcohol content at eleven p. m. was 1.56 mg. per cc. of blood, that would indicate that at eight p. m. the concentration in his blood was 2.01 mg. per cc. He also testified that it is medically accepted that a concentration of 1.5 mg. per cc. is sufficient to cause anyone to be under the influence of intoxicating liquor and also that anyone with 1.56 mg. per cc. is under the influence. A diagram showing the scene of the accident discloses that the officer found a large spot of blood five feet two inches north of the concrete, that is, on the side Drew was traveling, and that most of the broken glass was found to be off the concrete shortly after the accident happened.

The district attorney filed a complaint for manslaughter upon which a warrant was issued. A preliminary examination was held and the defendant was bound over to the circuit court for trial and committed to the custody of the sheriff of Dane county, the defendant herein.

[1] Nothing will be investigated on habeas corpus except jurisdictional defects amounting to want of any legal authority for the detention or imprisonment. Petition of...