State v. Friedl

• Decision Date: 03 April 1951
• Parties: STATE, v. FRIEDL et al.
• Court: Wisconsin Supreme Court

Page 306

47 N.W.2d 306

259 Wis. 110

STATE, v. FRIEDL et al.

Supreme Court of Wisconsin.

April 3, 1951.

The order is in form an order of the court, having been entered 'By the Court, Herman W. Sachtjen, Judge.' The basis of the motion to dismiss the appeal is that the proceeding being a preliminary examination, the circuit judge in fact sat as a magistrate and that appeal to this court does not lie.

On January 15, 1950 the district attorney of Dane county executed a complaint charging the defendants with the commission of two misdemeanors under sec. 343.681 and two felonies under sec. 340.45, Wis.Stats.

Upon issuance of the warrants the defendants appeared voluntarily before Circuit Judge Herman W. Sachtjen and moved to quash each count of the complaint upon the ground that none stated facts sufficient to constitute an offense. They also demurred to the complaint upon constitutional grounds. All motions were denied and demurrers overruled.

Thereafter and on October 3, 1950 a preliminary examination was held before Judge Sachtjen. After the State had presented its evidence, upon motion duly made by defendants, the judge ruled:

'Therefore, the State, failing to prove the essential elements of an offense, the Court finds that no offense has been committed by any of the defendants, and therefore the complaint as to each one will be dismissed, the defendants discharged and their bail released.

'It is so ordered.'

The State requested and the judge granted permission to appeal. Subsequently the judge reduced the order to writing in form 'By the Court' and signed it 'Herman W. Sachtjen, Judge.'

This motion is to dismiss the appeal taken by the State.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Jack R. DeWitt, Acting Dist. Atty., Roland B. Day, First Asst. Dist. Atty., Madison, for appellant.

LaFollette, Sinykin & Doyle and Murphy & Gavin, all of Madison, Albert E. Brandt, Madison, of counsel, Spohn, Ross, Stevens & Lamb, Madison, for respondents.

HUGHES, Justice.

The question here presented is whether Judge Sachtjen was acting as a court or as a magistrate.

Ch. 354, Wis.Stats., provides the procedure for the arrest and examination of persons charged with crime. Sec. 354.01 authorizes certain officials, including judges of courts of record, to issue criminal process and designates all such as magistrates. Sec. 354.02(5) provides in part: '* * * It [the warrant] shall command that the defendant be arrested and brought before the magistrate.'

Sec. 354.04 requires that every person arrested upon a warrant shall be taken before the magistrate before whom it is returnable.

There can be no doubt that in issuing the warrant Judge Sachtjen was functioning as a magistrate. The nature of the proceedings and not the form of the order must determine his capacity in entering it.

'Proceedings for the arrest and examination of offenders, and commitment for trial, under chapter 195, Rev.St. [now Chapter 354], are not, technically or properly speaking, proceedings in any court. They are proceedings before certain officers, known to the law as 'magistrates,' for the purpose of carrying out the provisions of this chapter; and these are 'the judges of the several courts of record,--in vacation as well as in term time,--court commissioners, and all justices of the peace' who are authorized to issue process to carry it into execution. Rev.St. § 4775.' State v. Sorenson, 1893, 84 Wis. 27, 31, 53 N.W. 1124, 1125.

'But a proceeding before an examining magistrate is not a judicial trial. It is a mere judicial inquiry, as before indicated, for the purpose of determining whether an offense has been committed and there is a probability that the accused is guilty thereof and should be placed on trial therefor. No plea or issue is necessary. * * * The doctrine of res adjudicata does not apply so that the result of one inquiry will preclude another. It is a proceeding that was unknown to the common law,--a mere statutory creation, a personal privilege which the accused must be accorded unless he waives it.' State ex rel. Durner v. Huegin, 1901, 110 Wis. 189, 239, 85 N.W. 1046, 1058, 62 L.R.A. 700.

In State ex rel. Arthur v. Proctor, 1949, 255 Wis. 355, 357, 38 N.W.2d 505, 506, the judge of the superior court of Dane county upon preliminary examination found that the offense had been committed in Columbia county and that the prosecution was not properly brought in Dane county and dismissed the action. The State petitioned the circuit court for Dane county for a writ of mandamus to require the judge of the superior court of Dane county to proceed with the preliminary examination because it appeared that the offense had been committed in Dane county. The circuit court granted the writ. Upon appeal from the order of the circuit court mandamus was held to be a proper remedy. The court said:

'A writ of mandamus is the proper remedy here. State ex rel. T. L. Smith Co. v. Superior Court of Dane County, 170 Wis. 385, 175 N.W. 927, is clear authority for that proposition. In that case a writ of mandamus granted by the...