State v. Evjue

• Decision Date: 12 April 1949
• Citation: 254 Wis. 581,37 N.W.2d 50
• Parties: STATE v. EVJUE.
• Court: Wisconsin Supreme Court

254 Wis. 581

37 N.W.2d 50

STATE

v.EVJUE.

Supreme Court of Wisconsin.

April 12, 1949.

Error to review a judgment of the Superior Court of Dane County; Roy H. Proctor, Judge.

Writ dismissed.On December 10, 1947, the district attorney for Dane County filed an information charging defendant, William T. Evjue, with violation of sec. 348.412, Stats., in that he published in The Capital Times, a Madison newspaper, the identity of a female ‘who may have been raped or subjected to similar criminal assault, where said publication was not necessary in the institution or prosecution of any civil or criminal court proceeding or in the compilation of records pertaining thereto. * * *’ Defendant initially filed six pleas in bar, all of which are set forth in detail in the statement of facts upon the first appeal of this case. State v. Evjue, 253 Wis. 146, 33 N.W.2d 305. For the purpose of this appeal it suffices to state that the issue initially tried was the constitutionality of sec. 348.412, Stats., and that the trial court held the section to be unconstitutional and sustained defendant's pleas. Upon appeal to this court the validity of the statute was sustained, the order reversed and the cause remanded for further proceedings. Upon remand there was a plea of not guilty, accompanied by a waiver of jury trial and the matter was tried to the court. The facts were not in dispute and came in partly by stipulation and partly by evidence of defendant and others.

By stipulation and by his own evidence defendant admitted the fact of publication and assumed full responsibility for it. Evidence was admitted subject to objection as to its materiality that other newspapers also published the name of the victim of the assault, including papers from Ann Arbor where the victim attended college, and Cleveland where she lived. It was stipulated subject to the same objection that witnesses would testify that the rape occurred under circumstances indicating that it was the apparent motive for the murder of the victim's companion and that the story as reported was correct in all material details. The court orally gave a decision in which among other things the following statements were made:

‘The defendant is before me charged with a crime-with a criminal offense. True, it is not a felony but it is a misdemeanor and punishable by a fine or imprisonment in the Dane county jail. A jury was waived and it devolves upon this Court to determine for himself whether or not the defendant is guilty or innocent of the charge as set forth in the complaint. * * * but, after all, it is the sole duty of this Court to determine for himself whether or not, in his opinion, the defendant is guilty of the crime as charged in the complaint. * * * It is the judgment of this Court that the evidence is insufficient to justify this Court in finding the defendant guilty of the charge as set forth in the complaint. * * * It is the Order of this Court that the complaint be dismissed, the defendant discharged, and his bond released.’

Thereafter a supplemental decision was filed for the stated reason that at the trial the court had found defendant not guilty without referring to the information. So far as material here the supplemental decision as filed read:

‘The Court finds the defendant, William T. Evjue, not guilty of the offense as charged in the information filed in the above entitled case.’

Judgment was entered on February 3, 1948, in accordance with the decision and after obtaining permission of the trial judge the state took its writ of error under sec. 358.12(8), Stats., which provides:

‘A writ of error may be taken by and on behalf of the state in criminal cases:

* * *

‘(8) From rulings and decisions adverse to the state upon all questions of law arising on the trial, with the permission of the presiding judge, in the same manner and to the same effect as if taken by the defendant.’

Such further facts as are necessary to an understanding of the issue upon this appeal will be stated in the opinion.

Thomas E. Fairchild, Atty. Gen., and William A. Platz, Asst. Atty. Gen., for plaintiff in error.

W. Wade Boardman, of Madison, for defendant in error.

WICKHEM, Justice.

This appeal poses important questions dealing with the scope of Article I, Section 8 of the Wisconsin Constitution which provides:

‘* * * no person for the same offense shall be put twice in jeopardy of punishment * * *’.

It also involves the proper interpretation of sec. 358.12(8), Stats., which provides:

‘A writ of error may be taken by and on behalf of the state in criminal cases:

(8) From rulings and decisions adverse to the state upon all questions of law arising on the trial, with the permission of the presiding judge, in the same manner and to the same effect as if taken by the defendant.'

The state contends: (1) That the constitutionality of sec. 358.12(8), Stats., was fully established by this court in State v. Witte, 243 Wis. 423, 10 N.W.2d 117; (2) that the state can appeal from a judgment of acquittal in any case where it attacks and seeks to have reviewed a ruling involving a question of law; (3) that the facts in this case being stipulated or undisputed the trial court was presented solely with a question of law as to the applicability of sec. 358.12, Stats., to the admitted facts.

Defendant contends (1) that under article I, section 8, the legislature may not validly enact a statute permitting review on behalf of the state of alleged procedural errors where there has been a judgment of acquittal; (2) that in any case the legislature may not authorize a review of the acquittal itself; (3) that the evidence presented facts and inferences which would warrant the trial court in finding as a matter of fact that defendant had not violated sec. 348.412, Stats.

We are favored with able briefs setting forth the history of the early common law rule against double jeopardy, as well as the background of the constitutional provisions relative thereto in the United States Constitution and those of most of the states. After consideration we have concluded that an elaborate review of these authorities would not constitute the performance of a useful judicial service. For a general discussion of appeals by the state in criminal cases see Justin Miller, 36 Yale Law Journal 486.

Our consideration of the constitutional aspects of the matter may well begin with the case of State v. Lee, 65 Conn. 265, 30 A. 1110,27 L.R.A. 498, 48 Am.St.Rep. 202. Connecticut had no constitutional provision specifically providing that no person shall twice be put in jeopardy of punishment. In 1886 the legislature had enacted a statute permitting the state to appeal. It was substantially similar to sec. 358.12(8), Stats. In State v. Lee, supra, the supreme court of Connecticut held that the provisions of this statute did not violate the state constitution. The court held that the question as to what constitutes a trial depends upon the course of procedure of the particular jurisdiction in which it is had; that in the case of an appeal by the state there is but one jeopardy and one trial; that where material error is committed on a trial and a new trial is ordered by the appellate court upon the State's appeal, the second trial is not a new case but is a legal disposal of the same original case tried in the first instance. In the later case of State v. Palko, 122 Conn. 529, 539, 191 A. 320, 113 A.L.R. 628, the court held that the statute did not deprive the defendant of due process of law and adhered to the doctrine of the Lee Case that the statute did not subject accused to double jeopardy.

In State v. Witte, 243 Wis. 423, 10 N.W.2d 117, 120 the state by writ of error sought to review an order of the trial court setting aside a verdict of guilty and discharging defendant. The writ was taken with the consent of the trial judge under sec. 358.12(8), Stats., to review alleged errors one of which was the sufficiency of the evidence to sustain the finding of guilty. This court sustained the constitutionality of sec. 358.12(8), Stats., against the contention that it violated Article I, section 8, of the Wisconsin Constitution heretofore quoted. We held that jeopardy continues ‘until such time as a defendant has had a legal trial for the offense with which he is charged. To say that a defendant has been twice placed in jeopardy because he is required to stand a second trial when the first trial was not according to the law of the jurisdiction in which he was tried is contrary to sound reasoning.’

In brief, then, this court took a minority but liberal view of the meaning and content of jeopardy-a view strongly defended by the supreme court of Connecticut and which had the specific approval of Mr. Justice Holmes expressed in a dissenting opinion in Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114,1 Ann.Cas. 655. Justice Holmes argued that there is one continuing jeopardy in the case from beginning to end and that there is a distinction between a new and independent case and several trials in the same case. Such a view seems to have been impliedly approved by Justice Cardozo in Polko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and has been held by many legal writers. See 36 Yale Law Journal, supra. Since the decision in the Witte case there have been several cases in this court dealing with appeals by the state under sec. 358.12(8) Stats.

The case of State v. Hanks, 252 Wis. 414,31 N.W.2d 496, needs no extended discussion because so far as the bearing of the statute is concerned it is almost precisely similar to State v. Witte, supra, that is to say, there was a conviction and the trial court thereafter set aside the verdict. In State v. Jaskie, 245 Wis. 398, 14 N.W.2d 148, there was a jury trial and a verdict of not guilty. A writ of error was taken to review the trial court's rulings adverse to the state in respect of the admission of evidence and the giving of instructions. The...