State v. Weidner
Decision Date | 02 June 1970 |
Docket Number | No. S,S |
Parties | STATE of Wisconsin, Respondent, v. Philip L. WEIDNER, Appellant. tate 123. |
Court | Wisconsin Supreme Court |
Edward R. Kaiser, Eau Claire, for appellant.
Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, for respondent.
The defendant argues that sec. 161.275, Stats., 1 is unconstitutional because (1) it results in total prohibition of marijuana; (2) the classification of marijuana as a narcotic drug is unreasonable; (3) putting possession in the same category as manufacture, growing, sale and distribution is unreasonable; and (4) the penalty is excessive. 2
The challenge to the constitutionality of sec. 161.275, Stats., was not brought before the trial court and is raised for the first time on appeal to this court. However, as a general rule, the constitutionality of a statute cannot be questioned for the first time on appeal.
'It is a rule of general application that the constitutionality of a statute cannot be first questioned on appeal, and this is especially true when the constitutionality of a statute depends on questions of fact as well as of law. Thus, the contention that a statute is unconstitutional because of irregularities in its passage cannot be urged for the first time on appeal.
* * *'4 C.J.S. Appeal and Error, pp. 700--704, § 234.
'In order to try a person for the commission of a crime, the trial court must have jurisdiction of both the subject matter and the person of the defendant. * * *' State ex rel. La Follette v. Raskin (1966), 30 Wis.2d 39, 45, 139 N.W.2d 667, 670.
Pillsbury v. State (1966), 31 Wis.2d 87, 94, 142 N.W.2d 187, 191.
* * *'21 C.J.S. Courts § 23, pp. 36, 37.
Ordinarily, a challenge to the constitutionality of a statute does not involve subject matter jurisdiction.
'Although the constitutionality of a statute may, at times, be a jurisdictional question, such is not generally the case. In the case at bar, no question has been raised that the Immigration and Naturalization Service in any manner lacks jurisdiction over aliens and deportation proceedings. In a somewhat similar situation, Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545, the Supreme Court did not consider the constitutionality of a statute as a jurisdictional matter which could be raised for the first time on appeal. In that case the defendant, on appeal, attacked the constitutionality of the Act under which he was convicted. The Supreme Court, at pages 78--79, 47 S.Ct. at page 301, said, 'There was no challenge to the constitutionality of the Opium Act in the District Court. This question was not presented in that court and was neither considered nor determined by it. The objections to the constitutionality of the Act which were set out in the assignment of errors are fully answered in Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904, decided after this writ of error had been sued out; and the additional objections set forth for the first time in the brief for the defendant in this Court, do not require consideration here. " Morgano v. Pilliod (7th Cir. 1962), 299 F.2d 217, 219.
'That constitutional questions which are nonjurisdictional must be asserted at trial to preserve them for appeal is a well settled doctrine in the Supreme Court, this circuit as well as many other circuits.' United States v. Hoskins (7th Cir. 1969), 406 F.2d 72, 74.
In the present case, the power of the county court of Eau Claire county to hear criminal cases is substantially the same as circuit courts. 3 The power of the circuit court over criminal cases is founded on the Wisconsin constitution 4 as well as statutes. 5 Thus, the Eau Claire county court had the power to hear and determine the criminal charge brought against the defendant.
With respect to a claim of constitutional right (as opposed to questioning the constitutionality of a statute) this court has stated that failure to raise such an issue in the trial court may result in the question being deemed waived:
Bradley v. State (1967), 36 Wis.2d 345, 359, 153 N.W.2d 38, 44, 155 N.W.2d 564.
We find that defendant's arguments have been put forth in other jurisdictions, none of which has held that similar statutes dealing with possession of marijuana are unconstitutional. Commonwealth v. Leis (1969), 355 Mass. 189, 243 N.E.2d 898; Raines v. State (Fla.1969), 225 So.2d 330; People v. Stark (1965), 157 Colo. 59, 400 P.2d 923; People v. Sheridan (1969), 271 A.C.A. 492, 76 Cal.Rptr. 655.
Raines v. State, supra, 225 So.2d p. 330.
People v. Sheridan, supra, 76 Cal.Rptr. pp. 655, 656.
Also, defendant relies heavily (and almost singularly) upon Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, wherein the Supreme Court held that the first and fourteenth amendments prohibit making mere private possession of certain obscene material a crime. However, the Supreme Court added the following footnote which renders that decision immaterial to any discussion of sec. 161.275, Stats.:
...
To continue reading
Request your trial-
State v. Taylor, 2011AP1030–CR.
......Jackson, 69 Wis.2d 266, 270–72, 230 N.W.2d 832 (1975); Libke v. State, 60 Wis.2d 121, 124–25, 208 N.W.2d 331 (1973); Young v. State, 49 Wis.2d 361, 366, 182 N.W.2d 262 (1971); Kruse v. State, 47 Wis.2d 460, 464–65, 177 N.W.2d 322 (1970); State v. Weidner, 47 Wis.2d 321, 328–29, 177 N.W.2d 69 (1970); State v. Wolfe, 46 Wis.2d 478, 484, 175 N.W.2d 216 (1970); Meunier v. State, 46 Wis.2d 271, 277, 174 N.W.2d 277 (1970); Brisk v. State, 44 Wis.2d 584, 587, 172 N.W.2d 199 (1969); Ernst v. State, 43 Wis.2d 661, 666, 170 N.W.2d 713 (1969); ......
-
Mader's Store for Men, Inc., In re
...... The United States Supreme Court has characterized proceedings under suspended state insolvency legislation as "utterly null and void," Straton v. New, 283 U.S. 318, 327, 51 S.Ct. 465, 75 L.Ed. 1060 (1931), and subject to collateral ... See State v. Weidner, 47 Wis.2d 321, 323, 177 N.W.2d 69 (1970). . 2 Sec. 128.06, Stats.1937, provided in part as follows: . 128.06 Involuntary proceedings. (1) An ......
-
State ex rel. Skinkis v. Treffert
...guilty to the charge. A number of recent Wisconsin cases lend initial credence to this argument, commencing with State v. Weidner, 47 Wis.2d 321, 177 N.W.2d 69 (1970). In that case, the court found that "as a general rule, the constitutionality of a statute cannot be questioned for the firs......
-
Laufenberg v. Cosmetology Examining Bd. of Wisconsin Dept. of Regulation and Licensing
...... of cosmetology to licensed beauty salons, are unreasonable regulations violative of the due process and equal protection clauses of the state or federal constitutions? . 2. Whether sec. 159.12(2), Stats., which requires that a licensed cosmetologist practice only under the ... State v. Weidner, 47 Wis.2d 321, 326, 177 N.W.2d 69 (1970). . Further, it would be contrary to sound judicial policy for this court to consider the ......