State v. Lewis
| Decision Date | 24 October 1916 |
| Citation | 164 Wis. 363,159 N.W. 746 |
| Parties | STATE v. LEWIS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.
Proceedings by the State to revoke the license granted Sherman T. Lewis to practice medicine and surgery. From orders striking portions of defendant's answer, and sustaining demurrer to a part of such answer, defendant appeals. Appeal from the order striking out part of the answer dismissed, and order sustaining demurrer to part of the answer affirmed, and cause remanded for further proceedings.
Appeal from two orders, one striking out certain portions of defendant's answer, and the other sustaining a demurrer to a part of said answer.
The proceedings in this case are instituted under sections 1436e and 1436f, Wis. Stats., to revoke and annul the license granted to the defendant to practice medicine and surgery within the state of Wisconsin. In the complaint he is charged with having procured, aided, and abetted a criminal abortion upon a pregnant woman, and that as a result thereof the woman died.
The portion of the answer demurred to interposed as a defense to these proceedings an allegation to the effect that the defendant had been tried in the municipal court for Milwaukee county for the same offense above specified, and upon such trial judgment had been rendered in his favor, and that demurrer was sustained.
The defendant further alleged that the prosecution upon which the complaint herein is based is actuated by malice and ill will toward defendant. It is this portion of the answer that was stricken out by the circuit court. A motion was made in this court to dismiss the appeal from the order striking out this paragraph on the ground that such is not an appealable order.Frank H. Hannaford and Charles S. Thompson, both of Milwaukee, for appellant.
A. C. Umbreit, of Milwaukee (Winfred C. Zabel, Dist. Atty., of Milwaukee, of counsel), for the State.
ESCHWEILER, J. (after stating the facts as above).
[1] The motion to dismiss the appeal from the order striking out the allegation in defendant's answer that the proceedings herein are actuated by malice and ill will must be granted. Such an order is not one subject to review by this court by direct appeal therefrom. Section 3069, Stats.; Wiesmann v. Shanley, 124 Wis. 431, 102 N. W. 932;Gooding v. Doyle, 134 Wis. 623, 115 N. W. 114.
By section 5, c. 426, Laws 1913, there was incorporated into the law and made a part of what is now section 1435i, the following provision:
“If any person licensed or registered by said board (i. e. of medical examiners) shall be convicted of any crime, committed in the course of his professional conduct, the court in which such conviction is had shall in addition to any other punishment imposed pursuant to law revoke such license or certificate.”
The defendant contends that where these proceedings are instituted for the canceling or revoking of his license, and that the same canceling and revoking could have been done in the proceedings in municipal court in case of his conviction, pursuant to the above-quoted provision of section 1435i, that he is now in effect being put in second jeopardy. He also contends that in any event the judgment of acquittal in the municipal court may be pleaded as a bar to these proceedings.
[2] These proceedings are declared by the express language of the Legislature to be civil proceedings. Section 1436e:
“* * * Such action shall be commenced and prosecuted as a civil action in the name of the state of Wisconsin as plaintiff, and against such person complained against as defendant, and the rules of pleading, evidence and practice in civil actions in the circuit court shall be applicable thereto, and either party may appeal from the circuit court to the Supreme Court as in other civil actions.”
They have been so held by this court in the case of State v. Schaeffer, 129 Wis. 459, 109 N. W. 522. While nothing is said in that decision with reference to the above-quoted portion of section 1435i relied upon by defendant, although the same was then in the law, yet it was there determined that this is a civil action and not one which imposes a penalty or prescribes a forfeiture. The effect of the above-quoted portion of section 1435i, therefore, is simply to give, as an incident to such conviction, power to the court in the criminal proceeding to do directly and forthwith what might be done in subsequent civil proceedings. It therefore does not change the nature of the proceedings now before us from civil to criminal, and unless it does so change their nature there can be no application of the doctrine of former jeopardy, for that applies only as to criminal proceedings. Brown v....
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