State v. Nall

• Decision Date: 04 June 1946
• Citation: 248 Wis. 584,22 N.W.2d 520
• Parties: STATE v. NALL.
• Court: Wisconsin Supreme Court

248 Wis. 584

22 N.W.2d 520

STATE

v.NALL.

Supreme Court of Wisconsin.

April 12, 1946.

Rehearing Denied June 4, 1946.

Error to review an order for judgment of the Circuit Court for Taylor County; G. N. Risjord, Judge.

Writ dismissed.

On writ of error issued on the petition of the state it seeks the review under sec. 358.12(8), Stats., of an order for judgment dismissing an action and for discharge of the defendant Elmer Nall notwithstanding the verdict of a jury finding Nall guilty on the charge that he, on December 7, 1944, did ‘willfully and unlawfully operate a motor vehicle while in a drunken condition and in a reckless, willful and wanton disregard of the rights and safety of others, and in so doing did inflict injury upon one, Frank J. Novak, contrary to’ sec. 85.81(3), Stats., etc.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Clarence Simon, Dist. Atty., of Medford, for plaintiff in error.

Herman Leicht, of Medford, for defendant in error.

FRITZ, Justice.

In this case the state seeks the review of the trial court's ruling in its decision, on motions after verdict, in which, after discussing the evidence in relation to whether or not the defendant Nall was in a drunken condition at the time in question, the court said:

‘This evidence, it seems clear, falls entirely short of being such as to convince beyond reasonable doubt that the defendant was driving wantonly, recklessly, or in a drunken condition. * * * The case seems to have been fully tried and all the evidence submitted that probably could be found, and therefore a re-trial would be useless, and a new trial should be denied, and the motion for judgment for insufficient evidence to substantiate the verdict, must be granted.'

In thus ruling there were necessarily involved, and the court had to consider questions of fact as to the credibility, weight and effect of decidedly conflicting testimony given by seventeen witnesses in relation to matters involved in determining the ultimate issue of fact as to whether or not Nall was in a drunken condition. Consequently the ruling which the state seeks to have reviewed is clearly upon questions of fact; and is not a ruling upon ‘questions of law’ within the meaning of that term in sec. 358.12(8), Stats., which reads:

‘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 term ‘question of law’ is also used in sec. 358.08, Stats., which authorizes a circuit court, after a conviction, to report and certify a question to the supreme court. That statute provides:

‘If upon the trial of any person who shall be convicted in said circuit court any question of law shall arise which, in the opinion of the judge, shall be so important or so doubtful as to require the decision of the supreme court he shall, if the defendant desire it or consent thereto, report the case so far as may be necessary to present the question of law arising therein, and thereupon all proceedings in that court shall be stayed.'

That statute was formerly numbered sec. 4721; and in construing the term ‘question of law’ therein, this court said in State v. Heiden, 139 Wis. 519, 523, 524, 121 N.W. 138, 140:

‘In order to answer a question of law in compliance with section 4721 [Stats. (1898)], it is necessary that the facts on which that question rests should be resolved by the trial court and certified to us, not the evidence, but the ultimate facts, and all of them which are material to determination of the question. (citations.) That has not been done, and we therefore cannot answer this question. Further, the question is not single, but threefold, which constitutes another obstacle to its certification and consideration. Id. In United States v. Union Pac. R. Co., 168 U.S. 505, 512, 18 S.Ct. 167, 42 L.Ed. 559, certain requisites of a certification under the federal judiciary act (act March 3, 1891, c. 517, 26 Stat. 826 [U.S.Comp.St.1901, p. 488]) are catalogued which are quite as essential to a compliance with section 4721: ‘Each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only.’'

To the same effect as to the meaning of the term ‘question of law’ is the following statement in State v. Konkol, 221 Wis. 184, 187, 266 N.W. 174, 175,

‘* * * if there is involved in these certified questions any issue with respect to the intent of this defendant, as seems to be indicated and argued in the briefs, the question is one of fact, and is not within the terms of section 358.08 or the jurisdiction of this court. For the foregoing reasons, this court has no jurisdiction, and we must therefore decline to answer the questions certified.'

Likewise to the same effect are the following cases:

In State v. Brooks, 102 Miss. 661, 59 So. 860, the court held that under Code 1906, sec. 40, authorizing the state to appeal from a judgment acquitting accused when a question of law has been decided adversely to the state, etc., the...