State v. Evjue

• Decision Date: 01 July 1948
• Citation: State v. Evjue, 253 Wis. 146, 33 N.W.2d 305 (Wis. 1948)
• Parties: STATE v. EVJUE.
• Court: Wisconsin Supreme Court

253 Wis. 146

33 N.W.2d 305

STATE

v.EVJUE.

Supreme Court of Wisconsin.

July 1, 1948.

Writ of Error to Superior Court of Dane County; Roy H. Proctor, Judge.

Reversed and cause remanded.On the 20th day of November, 1947, the district attorney of Dane County held a John Doe proceeding to ascertain the facts in regard to an alleged unlawful newspaper publication made on November 16, 1947. On the basis of the information obtained at that examination the district attorney filed a criminal complaint in the Superior Court of Dane County, in which it was alleged that William T. Evjue did on the 16th day of November, 1947, at the City of Madison, in said County of Dane, unlawfully publish and cause to be published in a certain newspaper, to-wit, The Capital Times, the identity of a certain female, to-wit, J_____ R_____, who may have been raped or subjected to similar criminal assault, where said publication was not necesary in the institution or prosecution of any civil or criminal court proceeding, or in the compilation of records pertaining thereto, against the peace and contrary to sec. 348.412 of the Statutes. A warrant was issued and the defendant appeared before the court on December 10, 1947, and waived preliminary examination. Thereupon the district attorney filed an information against the defendant substantially in the language of the complaint, to which the defendant filed six so-called pleas in bar, the substance of which are as follows:

(1) That sec. 348.412, Stat., abridges freedom of the press and the privileges and immunities of citizens of the United States, contrary to sec. 1 of the Fourteenth Amendment to the Constitution.

(2) That sec. 348.412, Stats., deprives persons of liberty and property without due process of law and denies the equal protection of the laws, contrary to sec. 1 of the Fourteenth Amendment to the Constitution of the United States.

(3) That sec. 348.412, Stats., restrains or abridges the liberty of speech and of the press, contrary to sec. 3, article 1 of the Constitution of Wisconsin.

(4) That sec. 348.412, Stats., is invalid in that it requires the defendant to be held to answer for a criminal offense without due process of law, contrary to sec. 8 of article 1 of the Wisconsin Constitution, and depriving the defendant of the right to obtain justice freely, conformably to the laws, contrary to sec. 9, article 1 of the Wisconsin Constitution.

(5) That as applied to the factual situation and to the defendant in the instant case, sec. 348.412, Stats., abridges the freedom of speech and the freedom of the press, privileges and immunities of citizens of the United States, contrary to the provisions of sec. 1 of the Fourteenth Amendment to the United States Constitution.

(6) That as applied to the factual situation and to the defendant in the instant case, sec. 348.412, Stats., restrains and abridges the liberty of speech and of the press, contrary to sec. 3, article 1 of the Constitution of Wisconsin.

The district attorney thereupon filed a reply to the pleas in bar specifically denying each one, the reply being supported by an affidavit to which was attached a copy of the news story and the transcript of the John Doe proceedings. Upon the issue thus made and on the basis of the evidence produced and the supporting affidavits the court, after hearing arguments of counsel, filed a written opinion and the following order was made:

‘It is the order of the court:

‘(1) That the pleas in bar are sustained.

‘(2) That sec. 348.412 is hereby declared to be unconstitutional and invalid.

‘(3) The information is dismissed, the defendant discharged and his bond released.’

On February 7, 1948, the state caused a writ of error to be issued out of the SupremeCourt, requiring transcript of the record and proceedings in the above entitled matter to be sent to the Supreme Court. In response to the writ the record in the case was filed in the Supreme Court February 7, 1948. The matter was brought on for hearing before the Supreme Court on May 28, 1948. Other facts necessary to a decision of the questions raised will be stated in the opinion.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Edwin M. Wilkie, Dist Atty., of Madison, for appellant.

W. Wade Boardman, of Madison, for respondent.

ROSENBERRY, Chief Justice.

It is considered that attention should first be directed to some matters of pleading and practice in order to keep the record straight. Sec. 355.09 provides:

‘Any objection to a prosecution or the sufficiency of an indictment or information that may be raised by a motion to quash, demurrer, plea in abatement, or special plea in bar, shall be so raised before a jury is impaneled or testimony taken, and unless so raised, shall be deemed waived * * *.’

The so-called pleas in bar raise no question except that relating to the validity of sec. 348.412, on the ground that it abridges the freedom of the press, deprives a party of due process and equal protection of the laws contrary to the constitution of the United States and the State of Wisconsin. While it is alleged in the fifth and sixth pleas that if applied to the factual situation and to the defendant in the instant case the said section is invalid, the paragraphs refer to matters which may properly be considered on the trial under the plea of not guilty.

The matter presented to the trial court and the question considered by the trial court is not raised by a special plea in bar. The rule is that in a criminal prosecution the accused may, and should, plead specially in bar any matter in confession and avoidance constituting a defense not admissible under the plea of not guilty. In the case of United States v. Murdock, 284 U.S. 141, 82 A.L.R. 1376, 52 S.Ct. 63, 6576 L.Ed. 210, the defendant was indicated for refusal to testify and interposed a special plea in bar averring that he ought not to be prosecuted under the indictment because if he had answered the questions put to him he would have given information that would have compelled him to become a witness against himself in violation of the Fifth Amendment, and caused him to be subjected to prosecution in the court below for violation of various laws of the United States as shown by a transcript of the questions asked and answers given, a statement of which he included in his plea. The United States demurred to the plea on the ground that it failed to show that the information demanded would have incriminated or subjected the defendant to prosecution under federal law, and that defendant waived his privilege under the Fifth Amendment. The court overruled the demurrer and entered judgment discharging the defendant, and the United States appealed from the judgment of the district court to the Supreme Court of the United States. After some discussion the court said:

‘We are of-opinion that leave to file the plea should have been withheld. The proceedings below are indicated by chronological statement printed in the margin. After demurrer-not shown by the record to have been disposed of-and motions for a bill of particulars and to suppress evidence which were denied, a plea of not guilty was entered. The case should then have been tried without further form or ceremony. * * * The matters set forth in the (special) plea were mere matters of defense determinable under the general issue (plea of not guilty). Federal criminal procedure is governed, not by state practice, but by federal statutes and decisions of the federal courts. (Citing cases.) Neither requires such piecemeal consideration of a case. A special plea in bar is appropriate where defendant claims former acquittal, former conviction, or pardon * * *, but there is no warrant for its use to single out for determination in advance of trial matters of defense either on questions of law or fact. That such a practice is inconsistent with prompt and effective administration of the law and is likely to result in numerous hearings, waste of courts' time, and unnecessary delays is well illustrated by the record in this case.’

An information which charges an offense in the language of a statute which is unconstitutional states no offense and the defect is jurisdictional. Servonitz v. State, 1907, 133 Wis. 231, 113 N.W. 277,126 Am.St.Rep. 955.

The sufficiency of an indictment or information is subject to a motion to quash, and the question is properly raised in that manner. State v. Kitzerow, 1936, 221 Wis. 436, 267 N.W. 71. We shall content ourselves by referring to sources stating the law with reference to the interposition of pleas in abatement and special pleas in bar. See 22 C.J.S., Criminal Law, § 427, page 661, Pleas in Abatement, et seq., and 22 C.J.S., Criminal Law, § 436, page 681, Special Pleas in Bar, et seq. See cases cited, note 51.

Designating the plea as a plea in bar does not determine its character. What the pleading filed did was to raise the question of the validity of the statute upon which the information was based. Upon that question it was not necessary or proper to take evidence, and the question should have been raised under our statute by demurrer or the general practice by motion to quash. If the statute is generally constitutional and for some circumstance peculiar to the situation of the defendant is unconstitutional, that is a matter which is properly triable under the general issue or a plea of not guilty. The question raised in this case having been thoroughly argued and fully presented to the court we shall treat the matter as if the information had been demurred to. The affidavits and evidence introduced will be regarded as surplusage, because they are not properly before the court.

Sec. 348.412, Stats. 1945, provides as follows:

‘Any person who shall publish or cause to be published in any newspaper, magazine, periodical or circular, except as the same may be necessary in the institution or prosecution of any civil or criminal court proceeding, or in the compilation of...