State ex rel. Wojtycski v. Hanley

• Decision Date: 04 December 1945
• Parties: STATE ex rel. WOJTYCSKI v. HANLEY, Sheriff.
• Court: Wisconsin Supreme Court

248 Wis. 108

20 N.W.2d 719

STATE ex rel. WOJTYCSKI

v.HANLEY, Sheriff.

Supreme Court of Wisconsin.

Dec. 4, 1945.

Appeal from an order of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.

Habeas corpus proceeding by the State of Wisconsin, on the relation of Max Wojtycski against George M. Hanley, Sheriff of Milwaukee County. From an order quashing the writ and remanding relator to custody of the sheriff, the relator appeals.-[By Editorial Staff.]

Affirmed.

Petition for writ of habeas corpus to circuit court for Milwaukee county on October 5, 1945, by Max Wojtycski. From an order quashing the writ and remanding relator to the custody of the sheriff, relator appeals.

Max Wojtycski was arrested on December 11, 1944, charged with having, on the 1st of September, 1944, committed the crime of burglary in the nighttime, of a drug store owned and operated by Ernest J. Hayek in Shorewood, Milwaukee county. On January 18, 1945, the preliminary examination was held before Hon. H. L. Neelen, judge of the district court, and the relator was bound over to the Municipal Court of Milwaukee county for trial.

The testimony on the preliminary examination reveals that the store was burglarized in the nighttime of September 1, 1944; that $960 in cash and several checks were taken from the safe which had been broken open. Five cases of King Black Label bourbon whiskey, nine bottles of Scotch whiskey and two and one-half cases of Lucky Strike cigarettes and some bottles of wine had also been taken from the store. Certain of the checks, which had been endorsed by the payees, cashed at the store and left in the safe were subsequently returned by the bank. They were offered in evidence. At least one bore the name of Max Wojtycski on the reverse side. There was no evidence offered showing the endorsement to be in the handwriting of the relator.

A bottle of sherry wine and a bottle of Scotch whiskey bearing Mr. Hayek's store marking, were found in relator's home at the time of the arrest and were received in evidence. Detective Oscar Tschury, one of the arresting officers, testified that Wojtycski was found in the attic of his mother's home; that in going up the stairway the detective stumbled over two cases of wine and Scotch; that defendant resisted arrest; that after he had been taken to the station, the officers returned to the home where the mother and sister of Wojtycski gave them permission to search the house and to take the cases of liquor with them. There is also testimony by the chief of police of Shorewood that the relator said to him: ‘If I admit to the Hayek robbery, that's the key to all of the jobs. So, I won't admit or deny it.’ During the preliminary examination, counsel for relator sought to suppress the evidence in regard to the liquor taken from the attic on the ground that it was illegally obtained. At the conclusion of the hearing, the court granted the motion to suppress the evidence but entered an order finding that an offense had been committed and that there was probable cause to believe defendant guilty. Relator, in the Municipal Court, on September 11, 1945, entered a plea in abatement. The plea was overruled and the relator then plead not guilty. The bail having been increased to $2000 and the relator being in default, he was placed in the custody of the sheriff. A writ of habeas corpus was issued by the circuit court and after a full hearing, an order was entered quashing the writ of remanding relator.

Wm. F. Quick, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and William J. McCauley, Dist. Atty., and John S. Barry, Deputy Dist. Atty., both of Milwaukee, for respondent.

FAIRCHILD, Justice.

Relator insists that there is no competent evidence in the record upon the preliminary examination connecting him with the crime with which he is charged and that therefore, the examining magistrate exceeded his jurisdiction in binding relator over for trial. The rule is that upon preliminary examination if it shall appear that a crime has been committed and there is probable cause to believe the prisoner guilty, he is to be committed for trial. sec. 361.18, Stats. The test is whether the evidence worthy of consideration, in any aspect for the judicial mind to act upon, brings the charge against the prisoner within the reasonable probabilities. State v. Whatley, 1932, 210 Wis. 157, 245 N.W. 93, 99 A.L.R. 749;State ex rel. Durner v. Huegin, 1901, 110 Wis. 189, 85 N.W. 1046,62 L.R.A. 700. It is not necessary on a preliminary examination to establish the guilt of the defendant beyond reasonable doubt.

The relator, here, rests his petition on two alleged grounds, (1) that the signature on the check was not identified as that of the relator and with relation to that matter, his position is well taken. However, as to the second ground; that the bottles of liquor offered in evidence cannot be considered because t...