State v. Sorenson

Decision Date10 January 1893
Citation84 Wis. 27,53 N.W. 1124
PartiesSTATE v. SORENSON.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE

Case certified from circuit court, Racine county; A. SCOTT SLOAN, Judge.

N. C. Sorenson was convicted for the illegal sale of intoxicating liquors. Case certified for determination.

The other facts fully appear in the following statement by PINNEY, J.:

An information was filed against the defendant, charging him with willfully and unlawfully selling intoxicating liquors on Sunday, contrary to the statute. Section 1565. The defendant pleaded in abatement of the information that he had never had a preliminary examination, as provided by law, before any examining magistrate or officer, and had never waived his right thereto. The state replied, in substance, that the action was commenced in the circuit court, before John T. Wentworth, a court commissioner of such court, and that the defendant filed an affidavit of prejudice of such commissioner, whereupon he transmitted all the papers in the action to E. B. Belden, the nearest magistrate of said circuit court to the office of said Wentworth, qualified by law to conduct the examination; that after a full and fair examination before said Belden, as such magistrate, according to law, the defendant was held for trial, and required to give, and did furnish, bail for his appearance for trial at the next term of the circuit court. The issue on the plea was tried before the court, when it appeared from the return of said Belden, and a supplemental return, that, upon filing the affidavit of prejudice, Court Commissioner Wentworth entered an order “that all the papers and proceedings had in this cause be transmitted to E. B. Belden, [county judge,] he being the nearest court commissioner in said county qualified by law to conduct the examination.” Before this order was made, the defendant's counsel moved said Wentworth to transmit the papers, etc., to R. L. Upchurch, who was a justice of the peace, as the nearest magistrate qualified by law to conduct the examination, and offered to prove that such was the fact, but Commissioner Wentworth refused to hear the proof, and refused to make such order, and the defendant objected to the order sending the case to Commissioner Belden; that after receiving the papers, etc., said Belden took jurisdiction of the case, and required the defendantto appear and proceed before him; that the defendant objected to and dnieed his jurisdiction, for the reason that he was not the nearest magistrate qualified, etc., but he overruled the objection, and took the testimony on the part of the state, and held the defendant for trial. It was proved as a fact that R. L. Upchurch was the nearest justice to the office of Commissioner Wentworth, qualified by law to conduct the examination, and nearer than Commissioner Belden. The circuit court overruled the plea in abatement, and, the defendant having been convicted, he moved in arrest of judgment on the ground, among others, that the court erred in overruling his said plea; and the circuit court certified the following questions for the determination of this court, namely: (1) Should the plea in abatement have been sustained? (2) Should judgment in the action be arrested?

J. L. O'Connor, Atty. Gen., and E. O. Hand, Dist. Atty., for plaintiff.

Winkler, Flanders, Smith, Bottum & Vilas, for defendant.

PINNEY, J., ( after stating the facts.)

By the statute, (section 4654,) it is provided that “no information shall be filed against any person for any offense until such person shall have had a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer,” unless the accused waives such right; but the objection for such failure or omission can be taken advantage of only by plea in abatement, as in this case, before pleading to the merits. An information lies only after a legal examination, unless it has been waived. Martin v. State, 79 Wis. 165, 171, 48 N. W. Rep. 119. An examination regularly and properly conducted under...

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12 cases
  • State ex rel. McCaffrey v. Shanks, 83-901-W
    • United States
    • Court of Appeals of Wisconsin
    • April 4, 1985
    ......195, Stats.1898, were 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 . Page 752 . carrying out the provisions of this chapter; .." State v. Sorenson, 84 Wis. 27, 31, 53 N.W. 1124, 1125 (1893). The preliminary was not conducted in a court even if a circuit court judge sat as the magistrate. State v. Friedl, 259 Wis. 110, 112, 47 N.W.2d 306, 307 (1951). .         Wisconsin's criminal code was revised by ch. 255, Laws of 1969, which ......
  • People ex rel. Chandler v. McDonald
    • United States
    • United States State Supreme Court of Wyoming
    • October 25, 1895
    ...... the custody of the warden thereof. Chandler applied for the. writ of habeas corpus to be directed to N. D. McDonald, the. warden of the State penitentiary. The case was heard upon the. petition for the writ. The facts are stated in the opinion. . . Writ. of habeas corpus ... jurisdiction. ( White v. State, 44 N.W. 443;. People v. Chapman, 62 Mich. 280; People v. Smith, 25 id., 497; State v. Sorenson, 84 Wis. 30; Martin v. State, 79 Wis. 165; In re. Wright, 3 Wyo. 487.) A preliminary examination is a. judicial determination. (Rev. Stat., ......
  • State ex rel. Perry v. Wolke
    • United States
    • United States State Supreme Court of Wisconsin
    • January 28, 1976
    ...... Schlosser v. Allis Chalmers Corp. (1974), 65 Wis.2d 153, 161, 222 N.W.2d 156.         While, under sec. 967.02(6), Stats., the term, 'judge,' includes, for some purposes, 'court commissioner,' a judge even of a court of record is not a court. State v. Sorenson (1893), 84 Wis. 27, 53 N.W. 1124; Rubin v. State (1927), 192 Wis. 1, 211 N.W. 926; State ex rel. Maloney v. Proctor (1946), 249 Wis. 377, 24 N.W.2d 698; State v. Friedl (1951), 259 Wis. 110, 47 N.W.2d 306; [71 Wis.2d 106] State ex rel. White v. District Court of Milwaukee County (1952), 262 Wis. ......
  • Jackson v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • October 22, 1895
    ......This has been repeatedly held by this court. State v. Evans, 88 Wis. 260, 261, 60 N. W. 433;State v. Sorenson, 84 Wis. 31, 53 N. W. 1124;Martin v. State, 79 Wis. 173, 48 N. W. 119. That he made such determination, and so transmitted the papers to Justice White, is manifest from the papers and records in evidence in the trial court. It appears from the transcript delivered to Justice White that upon the ......
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