State v. Sullivan

• Decision Date: 13 October 1942
• Citation: 5 N.W.2d 798,241 Wis. 276
• Parties: STATE v. SULLIVAN.
• Court: Wisconsin Supreme Court

241 Wis. 276

5 N.W.2d 798

STATE

v.SULLIVAN.

Supreme Court of Wisconsin.

Oct. 13, 1942.

Appeal from a judgment and sentence of the Circuit Court for Juneau County; August C. Hoppmann, Circuit Judge.

Affirmed.

Action by the State against Allie Sullivan upon the charge of assault with intent to commit rape, prescribed by sec. 340.48 Stats. 1939. The information also charged, pursuant to sec. 359.12 Stats., 1939, commonly referred to as the “repeater” statute, that the defendant had been previously convicted of a felony. A jury returned a verdictof guilty. From the judgment entered upon this verdict the defendant appeals. The further material facts are stated in the opinion.

Lucius A. Squire and M. M. Morrissey, both of Madison, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Charles P. Curran, Dist. Atty., of Mauston, for respondent.

FOWLER, Justice.

The minimum sentence prescribed by the assault statute above referred to is imprisonment for one year in State's prison and the maximum such imprisonment for ten years. The repeater statute provides that when a previous conviction of a felony is plead the court on conviction may impose a punishment of imprisonment in the State's prison “not less than the shortest time fixed for such [the] offense and not more than twenty-five years.” Sec. 359.05 Stats. provides that in cases where for the offense involved the maximum sentence of imprisonment is less than twenty years the court in imposing sentence “may fix a term less than the maximum prescribed by law for the offense, and the form of the sentence shall be substantially as follows: ‘You are hereby sentenced to the state prison * * * for a general indeterminate term of not less than . . . . (the minimum as fixed by the law for the offense) years, and not more than . . . (the maximum as fixed by the court) years.”’ The section also provides that such sentence shall have the force and effect of the maximum term subject to provisions for parole prescribed. The trial court under this.statute imposed a “general indeterminate term” of imprisonment in the State's prison “of not less than one nor more than twenty-five years.” Sec. 57.06 Stats.1939, provides for paroling a convict to the State's prison upon specified conditions when he “shall have served at least one-half of the term for which he was sentenced, not deducting any allowance of time for good behavior.”

The defendant contends that because of the twenty-five year sentence here involved the defendant is not subject to parole until he has served twelve and a half years of his sentence whereas under the statute prescribing the penalty for the offense charged he would be subject to parole after five years of service. We do not perceive that this if so at all affects the legality of the sentence. Whether it affects defendant's right to parole is not now before us.

The defendant contends that the information charges the prior conviction as a separate offense or count, and that this is reversible error. To this it is sufficient to say that the information is not subject to such construction as in one paragraph it plainly states an offense under the assault with intent to rape statute. Then follows another paragraph prefaced with the...