State v. Solomon

• Decision Date: 21 May 1914
• Parties: STATE v. SOLOMON.
• Court: Wisconsin Supreme Court

158 Wis. 146

147 N.W. 640

STATE

v.SOLOMON.

Supreme Court of Wisconsin.

May 21, 1914.

Questions Reported from Municipal Court of Milwaukee County; A. C. Backus, Judge.

Albert Solomon was convicted in the district court of Milwaukee county of obtaining money by means of false pretenses, and on appeal to the municipal court of that county he entered a plea of nolo contendere, and moved in arrest of judgment, whereupon the court reported four questions to the Supreme Court. First and third questions answered in the negative; the second and fourth questions in the affirmative.

On October 31, 1912, on a warrant issued by the district court of Milwaukee county on a complaint charging him with obtaining, in Milwaukee county, $4.50 from one Andrew Jurgensen by means of false pretenses, the defendant was arrested and was brought before the district court of said county for trial. Section 4423, Stats. 1911, provides a punishment for such offense of “imprisonment in the state prison or county jail not more than one year, or by a fine not exceeding two hundred dollars.” Section 5 of chapter 218 of the Laws of 1899 provides that the district court of Milwaukee county shall “have exclusive jurisdiction to hear, try and determine all charges for offenses arising within said county of Milwaukee, the punishment whereof does not exceed one year's imprisonment in the state prison or county jail or a fine of five hundred dollars, or both such fine and imprisonment.” And, as amended by chapter 63, Laws of 1905, it also provides that:

“Said court shall also have authority and jurisdiction to issue warrants for the apprehension of persons charged with the commission of offense in said county of Milwaukee and not triable before a justice of the peace of said county; and exclusive jurisdiction to examine said alleged offenders and commit or hold them to bail, the same as a justice of the peace might otherwise do.”

Before trial in the district court, defendant demanded a preliminary hearing, which was denied. He then objected to the jurisdiction of the court to try him on the ground that he had not had a preliminary examination, and the objection was overruled, whereupon he filed a plea in abatement, setting forth that he had not had a preliminary examination; that he was entitled to one, had not waived it, and was not a fugitive from justice. The district attorney demurred to the plea, and the demurrer was sustained. Defendant was then tried, found guilty, and sentenced to pay a fine of $25 and costs. He appealed to the municipal court of Milwaukee county. That court sustained the demurrer to the plea in abatement. Defendant demurred to the complaint, and the demurrer was overruled, whereupon, with the permission of the court, he entered a plea of nolo contendere, and moved in arrest of judgment. Upon the request and motion of the defendant, the court, under the provisions of section 4721, stayed all further proceedings, and reported the following questions to this court:

(1) Is the defendant entitled to a preliminary examination before being placed on trial for the offense, if any, set forth in the complaint?

(2) Does the complaint filed in this case state an offense under the laws of the state of Wisconsin?

(3) Ought the court to grant a motion in arrest of judgment duly made?

(4) Can the court lawfully, upon the complaint and record here certified, proceed to sentence the defendant?Walter C. Owen, Atty. Gen., and Edward Yockey, Dist. Atty., and Henry S. Sloan, First Asst. Atty. Gen., both of Milwaukee, for the State.

Lenicheck, Fairchild, Robinson & Boesel, Edward T. Fairchild, and Michael Levin, all of Milwaukee, for defendant.

VINJE, J. (after stating the facts as above).

[1] The determination of what is a correct answer to question 1 is involved in some difficulty and doubt. The right to a preliminary examination is one given by statute. The proceeding was unknown to the common law. State ex rel. Durner v. Huegin, 110 Wis. 189, 239, 85 N. W. 1046, 62 L. R. A. 700; 1 Bish. New Crim. Proced. (2d Ed.) § 239a. The statutory scheme or statutory declarations, therefore, must govern.

[2] Under the provisions of section 4781 et seq., the defendant, before the establishment of the district court for Milwaukee county, would unquestionably have been entitled to a preliminary examination, since the offense was one not triable before a justice of the peace. Chapter 218, Laws of 1899, created the district court, giving it a jurisdiction somewhat more enlarged than that of a justice's court. It has exclusive jurisdiction to try and sentence all offenders against the ordinances of the city of Milwaukee, and to hear, try, and determine all charges for offenses arising within said county of Milwaukee, the punishment whereof does not exceed one year's imprisonment in the state prison or county jail or a fine of $500, or both such fine and imprisonment, as well as to hear, try, and determine all charges for misdemeanors arising within said county otherwise triable before a justice of the peace. By chapter 63, Laws of 1905, it was given exclusive jurisdiction to examine offenders charged with the commission of offenses in Milwaukee county, not triable before a justice of the peace therein, and commit or hold them to bail, the same as a justice of the peace might otherwise do.

We thus see that the district court had exclusive jurisdiction to hold the preliminary examination for the offense charged against the defendant, and also exclusive jurisdiction to try him for the offense. The question arises: Does the statute contemplate that there shall be a preliminary examination by a magistrate or court that also has jurisdiction to try the offense? A literal construction of section 4782, Stats. 1911, would lead to an affirmative answer. But when we consider the statutory scheme which has not provided for a preliminary examination for offenses triable before justices...