State v. Bohner
| Decision Date | 10 January 1933 |
| Citation | 210 Wis. 651,246 N.W. 314 |
| Court | Wisconsin Supreme Court |
| Parties | STATE v. BOHNER. |
OPINION TEXT STARTS HERE
Appeal from a judgment and sentence of the Circuit Court for Monroe County; R. S. Cowie, Circuit Judge.
John J. Bohner, alias John O'Malley, was convicted of bank robbery, and he appeals.--[By Editorial Staff.]
Affirmed.
The defendant was tried before the court and a jury, and found guilty of the crime of bank robbery. He was sentenced to the state prison at Waupun for an indeterminate term of not less than fifteen years nor more than thirty-five years.M. H. Jefferson, of Sparta, and F. E. Withrow, and Q. H. Hale, both of La Crosse, for appellant.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William M. Gleiss, Dist. Atty., of Sparta, for the State.
No question is raised as to the sufficiency of the evidence, nor do either of the legal questions involved in this appeal require a consideration of the facts concerning the robbery and defendant's connection with it. The first contention of the defendant is that the court erred in trying the case in the circuit court before a circuit court jury. At the preliminary hearing defendant was bound over to the county court of Monroe county. On January 4, 1932, an affidavit was filed by defendant, setting forth that “he has good reason to believe and does believe that he cannot have a fair trial in such action in said court on account of the prejudice of the judge thereon, the Hon. R. A. Richards, and the defendant makes this affidavit for the purpose of applying for a change of the place of trial to some county where the cause complained of does not exist.” The affidavit further proceeds to allege “that an impartial and unprejudiced trial cannot be had in the county of Monroe, Wisconsin.” The affidavit concludes with the statement that it “is made for the purpose of obtaining a change of venue on the grounds of the prejudice of the judge of said court, the Hon. R. A. Richards, and because of the wide-spread prejudice and high feeling against this affiant and his defense of the people of Monroe county.”
Thereafter, on the 20th of January, 1932, defendant filed a further affidavit in support of a demand that the trial of the action be changed to an adjoining county, upon the ground that a fair and unprejudiced hearing could not be had in Monroe county. Counter affidavits were filed, and on January 21, 1932, Hon. R. A. Richards, judge of the county court for Monroe county, made and filed an order which reads as follows:
“The court having considered the application of the defendant for a change of venue on account of the prejudice of the people, and having filed a decision in the matter in which the court is of the opinion that a fair trial can be had,
Therefore, it is ordered that the motion of the defendant for a change of the place of trial on account of the prejudice of the people from the county of Monroe, be and the same is hereby denied.
Dated January 21, 1932.
Owing to the disability of the undersigned Judge of this Court, to hold court,
It is ordered that the Hon. R. S. Cowie, Judge of the 6th Judicial Circuit of Wisconsin be and he is hereby called in to sit as Judge of the Monroe County Court in the trial of the above entitled action.
Dated January 21, 1932.”
A few days subsequent to the 21st of January, the order above referred to was withdrawn from the files and a second order entered bearing the same date as the order withdrawn. This order denied the application for a change of the place of trial due to the prejudice of the people of Monroe county, and “it is further ordered, upon the affidavit of said defendant * * * alleging the prejudice of Hon. R. A. Richards, County Judge, to try said action, that said motion be granted and that the above entitled action be and the same is hereby transferred to the circuit court of said Monroe county, to be presided over by Hon. Robert S. Cowie, Judge of the Sixth Judicial Circuit of the state of Wisconsin.”
Upon the case being called for trial, counsel for defendant objected to the entire panel upon the ground that the jury had not been regularly selected for the trial of this case in county court. This motion being denied, the amended information was read. The amended information was entitled, “State of Wisconsin, Circuit Court, Monroe County.” Defendant pleaded “not guilty,” and the trial proceeded. It is the contention of the defendant that the filing of the affidavit of prejudice deprived Judge Richards of all jurisdiction, and all right to act further in the action except to make a proper order for the removal of the cause or for the calling in of another judge; that this jurisdiction was exhausted when Judge Richards called in Judge Cowie to act as county judge. It follows, according to defendant's contention, that the subsequent order of Judge Richards transferring the case to the circuit court was a nullity.
[1][2] The civil and criminal jurisdiction of the county court of Monroe county was provided for in chapter 293 of the Laws of 1919. It was there provided as follows: “The provisions of law applicable to change of venue in the circuit courts of this state, shall be applicable to said county court, except that when the venue of any action shall be so changed, it shall be changed to the circuit court of Monroe county.” (Section 13.)
It is further provided that the county judge, in lieu of a change of venue, “shall have the right to call upon any circuit judge or any county judge of a county court having civil or criminal jurisdiction of like subject matter to attend, hold court and try such action.” Section 12 of the act gives the county judge the same right in the event of his absence, sickness, or other disability. It is further provided, in section 14, that “the judge of the county court may also transmit to the circuit court any other case or proceeding before him, if, in his discretion, he deem it expedient.” It thus appears that, upon the filing of an affidavit alleging prejudice of the judge of the county court of Monroe county, the case may be transferred to the circuit court, or the county judge may call in a circuit judge or the county judge of a county whose county court has the requisite jurisdiction. There can be no question of the validity of defendant's contention that the affidavit of prejudice, if valid and sufficient, deprives the county judge of all jurisdiction except to make a proper order of removal or to call in another judge in obedience to the statutes. Northwestern Iron Co. v. Crane, 66 Wis. 567, 29 N. W. 654;Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52;Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177;In re Will of Fraser, 135 Wis. 401, 116 N. W. 3.
[3][4][5] It is our conclusion that the affidavit of prejudice here filed was so irregular as not to deprive the court of jurisdiction under the doctrine of these cases. The request was for a change of the place of trial to another county because of the prejudice of the judge and of the people of Monroe county. It combines allegations which entitled defendant to relief as a matter of right, upon the mere...
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