State v. Antes

• Decision Date: 16 November 1976
• Docket Number: 75--740--CR,Nos. 75--470--C,s. 75--470--C
• Citation: 246 N.W.2d 671,74 Wis.2d 317
• Parties: STATE of Wisconsin, Plaintiff-in-Error, v. Dale ANTES, Defendant-in-Error. STATE of Wisconsin, Plaintiff-in-Error, v. Wayne ANTES, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 671

246 N.W.2d 671

74 Wis.2d 317

STATE of Wisconsin, Plaintiff-in-Error, v. Dale ANTES, Defendant-in-Error.

STATE of Wisconsin, Plaintiff-in-Error, v. Wayne ANTES, Defendant-in-Error.

Nos. 75--470--CR, 75--740--CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 1976.

Decided Nov. 16, 1976.

David J. Becker, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. LaFollette, Atty. Gen., for plaintiff-in-error.

Melvin F. Greenberg, Asst. State Public Defender (argued), with whom on the brief was Howard B. Eisenberg, State Public Defender, for defendant-in-error. BEILFUSS, Chief Justice.

Two issues are presented:

(1) Is the order dismissing the informations, but with leave to amend them, appealable?

(2) Is an unloaded pellet gun a dangerous weapon?

On the question of appealability, both the state and the defendant agree the applicable statute is sec. 974.05(1)(a), which provides:

'(1) A writ of error or appeal may be taken by the state from any:

'(a) Final order or judgment adverse to the state made before jeopardy has attached or after waiver thereof.'

". . . (T)he test to determine whether an order is a 'final order' is its effect on the rights of the parties. If an order closes the matter and precludes further hearing and investigation it is final; but an order which does not completely dispose of the subject matter and settle the rights of the parties is not final. (Cases cited.) . . .." Estate of Stoeber, 36 Wis.2d 448, 452, 153 N.W.2d 599, 601 (1967); Herman Andrae Electrical Co. v. Packard Plaza, Inc., 16 Wis.2d 44, 48, 113 N.W.2d 567, 569 (1962).

Amplifying the above test, this court stated:

'While it is generally true that to be final an order must dispose of the whole matter in litigation, it is also true that an order is appealable where even though it does not dispose of the entire subject matter in litigation it does terminate a particular proceeding or action.' State v. Bagnall, 61 Wis.2d 297, 302, 212 N.W.2d 122, 125 (1973).

The state argues the dismissal of the armed robbery charge was a final order because it precluded a trial on that issue. The defendant's position is that the proceeding has not been terminated because the defendant can still be tried for robbery under the challenged order. We do not believe the defendant's position is sound. If the defendant is tried on the robbery charge regardless of whether he is found guilty or not, he could not be tried again on a charge involving the same incidents and basically the same facts. To do so would violate the constitutional prohibition of double jeopardy. The state would lose its right, if it has one, to try him on the armed robbery charge. In its present posture the question of whether an unloaded pellet gun can be a dangerous weapon is one of law and not fact.

We conclude the state's position is correct--the order does preclude a trial on the armed robbery charge, is a final one, and, as such, is appealable.

Our attention has been called to two decisions of this court: Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963), and State ex rel. Beck v. Duffy, 38 Wis.2d 159, 156 N.W.2d 368 (1968).

In Tell, a district attorney had eight witnesses present at a preliminary examination but took testimony from only one. This witness was impeached by defense counsel and the trial court granted a motion for dismissal. A second complaint was issued and the same eight witnesses were subpoenaed by the state. The defendant opposed a second preliminary by seeking a writ of habeas corpus. The writ was quashed and the defendant appealed. The defendant argued that the state could not reissue the complaint. Construing sec. 955.20, Stats. (now sec. 970.04), this court held that the state could reissue.

One policy consideration supporting this decision was the belief that a descharge on a preliminary hearing should not have the same effect as an acquittal after a trial on the merits. Tell, supra 21 Wis.2d at 617, 124 N.W.2d at 658. The Tell decision was primarily a holding that when new or unused evidence would support a finding of probable cause a second complaint could be issued. This was a construction of the statute. A problem is presented by dicta of the court that '(t)he state has no appeal from errors of law committed by a magistrate upon preliminary examination . . ..' Id. at 619, 124 N.W.2d at 659. In Beck, supra 38 Wis.2d at 166, 156 N.W.2d [74 Wis.2d 323] at 372 the court quoted this language from Tell and an additional quote which stated: '. . . 'The only way an error of law committed on the preliminary examination prejudicial to the state may be challenged or corrected is by a preliminary examination on a second complaint. . . ."

Beck, as appellant, was arguing that criminal proceedings could not be recommenced since the first charge was dismissed. Relying on Tell, the Beck court held that the issuance of a second complaint was proper. Beck, supra at 164, 156 N.W.2d at 371. The Tell and Beck Cases were judicially sound decisions. They correctly construed sec. 955.20, Stats. (970.04) and were based on sound policy.

If the district attorney has evidence which will show probable cause that a defendant committed a crime and this evidence was not used at the first preliminary, he ought to be able to reissue. But in establishing grounds for allowing the reissuance, Tell and Beck went beyond construing the statute. The language concerning the lack of appealability of errors of law was unnecessary to support those decisions and is withdrawn. If an error of law is made at a preliminary hearing which results in a final order which is prejudicial to the state, the final order is appealable. In this case the dismissal of armed robbery was a final order and is therefore appealable.

Tell and Beck, supra, stand for the proposition that after the discharge of a defendant at a preliminary examination the state may reissue a complaint if it has or discovers additional evidence. See sec. 970.04, Stats. But if the state has no additional evidence or believes an error of law was committed it should be able to appeal.

The question of law before us is whether an unloaded pellet gun can be a dangerous weapon when used in a robbery.

The defendant was charged with a violation of sec. 943.32(1)(b) and (2), Stats. ¹ In substance the informations allege the defendant did with the intent to steal from the victim by threatening the imminent use of force with the intent to compel acquiescence while armed with a dangerous weapon.

The statutory definition of a dangerous weapon is contained in sec. 939.22(10), Stats. It is as follows:

"Dangerous weapon' means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.'

An analysis of this statute reveals three separate categories. The first category concerns firearms. Any firearm, loaded or unloaded, is a dangerous weapon. A pellet gun is not a firearm. ² A firearm acts by force of gunpowder, and the pellet gun here acted by force of a CO2 cartridge. Accordingly, under the first category, the pellet gun is not a dangerous weapon.

The second category states that any device designed as a weapon and capable of producing death...