State v. Zisch

• Court: Wisconsin Supreme Court
• Writing for the Court: FOWLER
• Citation: State v. Zisch, 243 Wis. 175, 9 N.W.2d 625 (Wis. 1943)
• Decision Date: 18 May 1943
• Parties: STATE v. ZISCH.

243 Wis. 175

9 N.W.2d 625

STATE

v.ZISCH.

Supreme Court of Wisconsin.

May 18, 1943.

Appeal from an order of the Municipal Court of Milwaukee County; Max W. Nohl, Judge.

Appeal dismissed.

Action by the State of Wisconsin against Peter J. Zisch, convicted of perjury and sentenced to State's Prison on plea of guilty. From an order denying a motion to vacate the judgment, made at a subsequent term, and after serving three years of a four year sentence, the defendant appeals. The facts are stated in the opinion.

Wiener & Wiener and Gilbert E. Vandercook, all of Milwaukee (Louis S. Wiener, of Milwaukee, of counsel), for appellant.

John E. Martin, Atty. Gen., and Herbert J. Steffes, Dist. Atty., and George A. Bowman, Deputy Dist. Atty., both of Milwaukee, for respondent.

FOWLER, Justice.

Peter J. Zisch, who will hereinafter be referred to as the defendant, on December 13, 1911, plead guilty in the municipal court of Milwaukee county to an information and on his plea of guilty was sentenced to a term of four years in the State Reformatory at Green Bay, three of which he served. On April 22, 1942, he duly moved the court to vacate the judgment and sentence. The ground laid for vacating the judgment was that it is void because the court was without jurisdiction because the information did not state any offense. The court denied the motion on two grounds: (1) That the court had no jurisdiction to set aside the judgment a year after its rendition; and (2) that the court had jurisdiction of the offense of perjury which was the subject matter of the action, and of the person of the defendant, wherefore the rendition of the judgment and imposition of the sentence was only error, and the court had jurisdiction to err as well as to decide correctly. The defendant appealed from the order denying his motion.

The information was conceived as charging perjury. It alleged that in an application to the governor under sec. 174, R.S.1898, for appointment as a notary public the defendant “was required and did” “wilfully, corruptly and feloniously” falsely swear before a notary public that he was “a qualified elector in the county of Milwaukee”, whereas he was at the time of so swearing only nineteen years of age. The statute cited did not “require” that an applicant for a notary commission should make oath that he was a qualified elector, but only prescribed that the governor should appoint in each county “one or more qualified electors who shall be residents and qualified electors, or females over twenty-one years of age or upwards, of the county for which they are appointed.” The courts must take judicial notice of ...