State ex rel. De Puy v. Evans

• Decision Date: 02 October 1894
• Citation: 88 Wis. 255,60 N.W. 433
• Parties: STATE EX REL. DE PUY v. EVANS.
• Court: Wisconsin Supreme Court

88 Wis. 255

60 N.W. 433

STATE EX REL. DE PUY

v.EVANS.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Petition by the state of Wisconsin, on the relation of Edwin M. De Puy, against E. J. Evans, for writ of prohibition. Alternate writ quashed.

This is an original application to this court for a writ of prohibition. The facts alleged in the relator's verified petition, filed herein July 18, 1894, and in the return, are to the effect: That February 17, 1893, a complaint upon information and belief was made by one Charles G. Deissner before the defendant, as justice of the peace, charging the relator with having on October 17, 1892, at the county of Waukesha, committed the crime of adultery with his niece, Helen May De Puy. That thereupon said justice forthwith issued his warrant for the arrest of the relator, and he was thereon arrested, February 18, 1893, and brought before said justice for examination. That the justice refused to dismiss said proceedings for want of jurisdiction. That a full examination of the relator was had on the part of the state before him, whereupon, and on March 13, 1893, the said magistrate did adjudge that the offense had been committed, and that there was probable cause to believe the relator guilty, and did bind him over to the circuit court of Waukesha county for trial, and fixed his bail at $4,000, which was given by the relator. That thereupon said magistrate certified a full return of the proceedings and of his said examination to the circuit court, together with the stenographer's transcript of all the testimony. That the same was filed in said circuit court May 20, 1893. That May 23, 1893, the district attorney filed in said circuit court his information in said action, in the ordinary form. That May 24, 1893, the relator was arraigned in said circuit court upon said information. That thereupon the relator entered his plea of not guilty. That May 24, 1894, a jury was duly impaneled and sworn in said court to try him for said offense. That the district attorney fully opened and stated his case to said jury, and called a witness on behalf of the state, who was sworn therein. That the court thereupon sustained an objection to any evidence on the ground that the information did not charge an offense, and discharged the relator from custody. That thereafter, and on said May 24, 1894, another complaint was made in writing and on oath by one Mabel Dougherty, before one T. W. Parkinson, a justice in and for Waukesha county, charging the relator with the same identical offense at the same time and place as charged in said previous complaint, warrant, and information. That a warrant was thereupon issued by said magistrate, and the relator was again arrested, May 24, 1894, and brought before said magistrate for another examination. That the action was then removed to A. J. Dopp, the nearest magistrate qualified by law. That such proceedings were had therein that July 6, 1894, the cause was dismissed for want of jurisdiction, and the relator was discharged by Justice Dopp. That July 12, 1894, another complaint was made by said Mabel Dougherty before one George M. S. Jewett, a justice in and for said county of Waukesha, in the words and figures following, to wit:

“State of Wisconsin, County of Waukesha--ss.: The State of Wisconsin against Edwin M. De Puy. Mabel L. Dougherty, being duly sworn, says that on the 17th day of October, in the year 1892, at said county, Edwin M. De Puy did then and there have sexual intercourse with one Helen May De Puy, a female, said Helen May De Puy then and there being the daughter of William H. De Puy, who was and is a brother of said Edwin M. De Puy, and did then and there have incestuous sexual connection and intercourse with said Helen May De Puy, daughter of said brother of said Edwin M. De Puy, against the peace and dignity of the state of Wisconsin. Mabel Dougherty.

Subscribed and sworn to before me this 12th day of July, 1894. Geo. M. S. Jewett, Justice of the Peace.”

That said last-named magistrate thereupon issued his warrant upon said complaint, in the ordinary form, except as mentioned in the opinion. That upon said warrant the relator was again arrested, July 12, 1894, and brought before said last-named magistrate for another examination. That the relator thereupon made the statutory oath of prejudice of said magistrate, whereupon said magistrate, Jewett, notwithstanding Justice Kimball was the next nearest justice of the peace, certified all the papers in said action to the defendant herein, as the next nearest justice qualified by law to hold said examination. That upon being brought before said justice E. J. Evans, and an objection to the jurisdiction having been overruled, the relator thereupon filed with the defendant his plea, in writing, of former jeopardy, and acquittal of said charge, together with former examination, and all proceedings against the relator before the various magistrates and courts for the offense charged. That the defendant in all things overruled said plea and objection. That said second examination was by him ordered to proceed before him, and the relator was by him, the said E. J. Evans, recognized to appear before him for such examination. That thereupon the relator filed in this court his verified petition, reciting at length and in detail, all and singular, the foregoing proceedings, and obtained from this court the alternative writ of prohibition, which was duly served upon the defendant herein. To said petition the defendant returned under oath, in effect, a reiteration of the facts stated. To that return the relator demurred on the ground that the same did not constitute a defense.D. S. Tullar and Ryan & Merton, for relator.

C. E. Armin and J. L. O'Connor, Atty. Gen., for defendant.

CASSODAY, J. (after stating the facts).

In this state marriage “between parties who are nearer of kin than first cousins, computed by the rule of the civil law, whether of the half or of the whole blood,” is expressly forbidden. Rev. St. § 2330. Such a marriage, “if solemnized within this state,” is “absolutely void without any judgment of divorce or other legal proceeding.” Id. § 2349. The statute, moreover, declares that: “Any person being within the degree of consanguinity within which marriages are prohibited, or declared by law to be incestuous and void, * * * who shall commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not more than ten years, nor less than two years.” Id. § 4582. Of course the justice of the peace had no jurisdiction to hear, try, and determine the guilt or innocence of the accused for such a crime. Id. § 4739. But he did have jurisdiction, upon proper complaint being made, to issue his warrant in proper form, and cause the accused to be brought before him, and to examine into the matter so charged, and if he found upon such examination that the offense charged had been committed, and that there was probable cause to believe the prisoner guilty, then to hold him to bail, or commit him for trial. Id. §§ 4775-4792. The complaint upon which the relator was last arrested was subscribed and sworn to by the complainant before Justice Jewett, and is set forth in the foregoing statement. It purports to have been made after the complainant had been duly sworn, and hence must be regarded as a sufficient examination of the complainant on oath to satisfy the statute. State v. Nerbovig, 24 N. W. 321, 33 Minn. 480;State v. Davie, 62 Wis. 305, 22 N. W. 411. It contains a substantial statement of the offense, in positive terms, and that seems to be sufficient. Ford v. State, 3 Pin. 449;Gallagher v. State, 26 Wis. 423.

That complaint, therefore, gave to Justice Jewett jurisdiction to issue a warrant, and cause the relator to be arrested and brought before him, and to examine whether the offense charged had been committed, and, if so, whether there was probable cause to believe the accused was guilty. He did issue a warrant and cause the relator to be brought before him for examination; and thereupon the relator made the statutory oath of...