State v. Weidner

Decision Date02 June 1970
Docket NumberNo. S,S
Citation177 N.W.2d 69,47 Wis.2d 321
PartiesSTATE of Wisconsin, Respondent, v. Philip L. WEIDNER, Appellant. tate 123.
CourtWisconsin Supreme Court

Appellant-defendant, Philip L. Weidner, aged twenty-eight, was arrested August 26, 1968, and charged with possession of marijuana, contrary to sec. 161.275, Stats. On September 25, 1968, the defendant, represented by his court-appointed attorney, waived his right to a preliminary hearing and was bound over to the circuit court branch of the county court of Eau Claire county. Upon his plea of guilty, defendant was found guilty and sentenced to an indeterminate period of not more than two years, with execution of the sentence stayed and defendant placed on probation for two years. As a condition of that probation, defendant was required to spend the first year of probation in Eau Claire county jail subject to Huber Law-type privileges to work and start school in January.

On January 2, 1969, probation was revoked and on May 5, 1969, defendant moved to withdraw the guilty plea and vacate judgment and sentence. The county court of Eau Claire county denied these motions and from this denial defendant has appealed.

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.

'Under various circumstances, however, the constitutionality of a statute may be first considered on appeal, * * * Likewise, where the issue raises a matter of public policy or concern, constitutionality may be considered, although raised for the first time on appeal. Also, where the question of constitutionality involved is one of jurisdiction of the subject matter, since jurisdiction of subject matter cannot be waived or conferred by the parties, the court may consider the question 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.

'* * * Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law. 21 Am.Jur.2d, Criminal Law, pages 398--399, sec. 376.' Pillsbury v. State (1966), 31 Wis.2d 87, 94, 142 N.W.2d 187, 191.

'Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs, the authority to hear and determine both the class of actions to which the action before the court belongs and the particular question which it assumes to determine. 'Jurisdiction over the subject-matter' means the nature of the cause of action and relief sought, and such jurisdiction is conferred by the sovereign authority which organizes the court and is to be sought for in the general nature of the court's powers or in the authority especially conferred on the court. * * *' 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:

"This question was raised for the first time in the briefs that are before us on this appeal. We have frequently said that even the claim of a constitutional right will be deemed waived unless timely raised in the trial court. * * * We have, however, concluded that this court may nevertheless decide a constitutional question not raised below if it appears in the interest of justice to do so and where there are no factual issues that need resolution." 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.

'After argument and upon consideration of the briefs of the parties and study of the record, we have determined that appellant's contentions are wholly without merit. Marijuana is a harmful, mind altering drug. It endangers the health of the user and is highly detrimental to the public welfare. This drug is within the category of injurious substances which the Legislature may regulate and prohibit in the exercise of its police power. No fundamental rights of the individual are violated thereby.' Raines v. State, supra, 225 So.2d p. 330.

'Questions of a similar nature have been raised in other jurisdictions and whenever the issue has been presented it has been uniformly held that marijuana is a narcotic drug for purposes of statutory interpretation. (Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; People v. Stark, 157 Colo. 59, 400 P.2d 923; Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786; State v. Jackson, Del., 239 A.2d 215; Commonwealth v. Leis, Mass., 243 N.E.2d 898; Escobio v. State, Fla., 64 So.2d 766; United States v. Ford Coupe Automobile, 83 F.Supp. 866.)' 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.:

'What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.' Stanley v. Georgia, supra, p. 568, 89 S.Ct. p. 1249.

Most important, one of defendant's central arguments is the unreasonableness of...

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