State ex rel. Welch v. Waukesha County Circuit Court, Branch II
| Decision Date | 17 August 1971 |
| Citation | 189 N.W.2d 417,52 Wis.2d 221 |
| Parties | STATE ex rle. James E. WELCH, Petitioner, v. WAUKESHA COUNTY CIRCUIT COURT, BRANCH II, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Hippenmeyer, Reilly & Arenz, Waukesha, by William F. Reilly and Donald S. Molter, Jr., Milwaukee, for petitioner.
Robert W. Warren, Michael L. Zaleski, Asst. Attys. Gen., for respondents.
This petition raises the question of whether a person who has been indicted for a felony is entitled by the statutes of the state of Wisconsin to a preliminary hearing.
James E. Welch, coroner of Waukesha county was indicted on two counts of theft in violation of sec. 943.20(1)(a) and one count of misconduct in public office in violation of sec. 946.12(2), Stats., by a Waukesha county grand jury. Welch was summoned and appeared before the county court of Waukesha county for an initial appearance on July 22, 1971, at which time he moved for a preliminary examination. The motion was later denied and the case was transferred to the circuit court for arraignment and trial. Upon application to this court, an order to show cause was issued why a writ of prohibition should not issue restraining the circuit judge, assigned to hear the case, from holding the arraignment until a preliminary examination was had.
The petitioner contends the Wisconsin statutes provide complete and exclusive procedure for the prosecution of crimes 1 and all persons charged with a felony are entitled to a preliminary examination. This argument equates an indictment by a grand jury, with its ex parte procedure and its accusatorial nature, with a complaint for the arrest of an accused. Upon this analogy, it is urged a judicial determination, as is the function and purpose of a preliminary examination, should be had in all cases of felony and that the intent of the legislature is clear in sec. 970.02(1)(c), Stats., 2 which makes it the duty of a judge at the initial appearance to inform the accused that he is entitled to a preliminary examination if charged with a felony excepting in three express instances: (1) Waiver, (2) the accused is a fugitive from justice and was returned to this state by extradition, and (3) the defendant is a corporation. Since an indictment is not expressly stated as one of the exceptions, it is argued that when a criminal proceeding to prosecute a felony is commenced, whether by a complaint followed by an information or by an indictment, the accused is entitled to a preliminary hearing.
The state contends the common-law proceeding of indictment required no preliminary examination and the intention and language of the statutes made no change in this method of prosecution for a felony.
At the outset, we must observe what is commonly called the Criminal Code in this state is reasonably susceptible to both interpretations. At common law, an indictment was the usual method of accusing a person of a felony and trying him therefor. There was no intermediate step between the indictment and the trial. The accused was arrested upon the indictment and tried upon the indictment. The sufficiency of the indictment, its alleged weaknesses or procedural defects upon which it might be founded were hard to discover because of the secrecy surrounding the grand jury, and for most practical purposes such errors could not effectively be raised prior to trial. It was presumed the indictment was founded upon a sufficient legal basis although neither the common law nor our statute required or now requires the judge conducting the grand jury proceeding to instruct the jury upon the quality and quantity of proof necessary to support an indictment. Nor is the grand jury bound to follow the instructions of the judge,--being the judge of the law as well as the facts, it is free to disregard the judge's instructions and consider them only advisory. State v. Lawler (1936), 221 Wis. 423, 267 N.W. 65.
In Lawler, the court in effect equated the burden of proof applicable to an indictment with that of probable cause at a preliminary examination for the purpose of binding over an accused for tral. The court stated, at p. 435, 267 N.W. at p. 71, 'When a grand jury has before it evidence which is competent and credible which excites in its mind after careful consideration an honest reasonable belief that the accused committed the offense charged, it is warranted in returning an indictment.' In Steensland v. Hoppmann (1934), 213 Wis. 593, at 598, 599, 252 N.W. 146, at 148, it was said, '* * * the presumption of good faith and the discharge of duties by men taking the solemn oath of members of a grand jury, is an element in the situation and accompanies so formal an accusation as an indictment and prima facie is sufficient to imply reasonable grounds for holding one so indicted for trial.'
While probable cause may be easier to find in an ex parte accusatorial proceeding
In State ex rel. Haynes v. Powers (1969), examination, nevertheless, the Constitution of the United States has not required a preliminary examination to pretest the prosecution's evidence or to serve as an adverse examination. 3 The problem confronting this court is not a constitutional one but a question of statutory construction.
In spite of the meritorious argument of the petitioner, we are not convinced our present statutes were intended to provide a preliminary examination to an accused in cases where he is charged by an indictment of a felony. Nowhere in the statutes relating to a preliminary examination is the word 'indictment' used. By secs. 967.05(3) and 971.05(3), Stats., the defendant is tried on the indictment and at the arraignment he is to be given a copy of the indictment. These sections contemplate there is no preliminary examination. While one could still be tried on an indictment after a preliminary, it would be difficult to hold a preliminary if the defendant is to first receive a copy of it, as he does an information, upon the arraignment.
Between the argument the accused should have a preliminary examination in every case where he is charged with a felony because such examination is not expressly excluded in the statutes in case of an indictment and the argument that a preliminary examination is not required unless expressly provided by the statutes, we take the view the statutes do not provide for a preliminary examination when the...
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