Tell v. Wolke

Citation21 Wis.2d 613,124 N.W.2d 655
PartiesArthur Richard TELL, Plaintiff in Error, v. Michael WOLKE, Sheriff of Mikwaukee County, Defendant in Error.
Decision Date26 November 1963
CourtUnited States State Supreme Court of Wisconsin

Beaudry & Kershek, Milwaukee, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Milwaukee County, Hugh O'Connell, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

We need not consider seriously the order denying the motion for summary judgment. Admittedly the motion was brought to discover whether the district attorney, after the first preliminary examination, had discovered evidence which was not in his possession at the time of the first examination upon which he caused the second complaint and warrant to be issued. The motion served the plaintiff's purpose and no error is assigned relating to the grounds of the denial of the motion for summary judgment. But if error was committed, it is immaterial as the same question of law which would have been reached on the motion was presented on the pending motion to quash.

The issue is whether the district attorney is foreclosed by sec. 955.20, Stats., from relying on evidence from a person who was under subpoena available and not called as a witness at the first preliminary hearing as the basis for causing a second complaint for the same offense to be issued against the plaintiff. The section provides:

'955.20 Second examination. If a preliminary examination has been had and the defendant has been discharged for want of evidence, and the district attorney afterwards discovers evidence sufficient, in his judgment, to convict the defendant, he may cause another complaint to be made, and thereupon further proceedings shall be had.'

In the trial court the issue was whether the district attorney had complied with the statute. The district attorney contended he had 'discovered' new evidence and the trial court so held. On this appeal, the attorney general appearing for the defendant in error argues the statute being directory only does not prohibit a second complaint being made on the same evidence. The plaintiff contends the statute is jurisdictional and permits a second complaint for the same offense to be made only upon compliance with its terms. The plaintiff further contends there has been no compliance because the district attorney is chargeable with knowledge of the testimony which a person subpoenaed and available as a witness may give on the first examination and if the district attorney does not examine him as a witness, such testimony cannot afterwards be 'discovered' by the district attorney within the meaning of the section. In our view of the case, we do not reach this second contention.

As an original and literal interpretation of sec. 955.20, Stats., the first contention of the plaintiff might have some merit; however, the cases construing the statute do not support it. The plaintiff's construction would establish the proposition that the only time a district attorney can and may cause a second complaint for the same offense to be issued against a defendant is in those limited number of cases where new evidence is discovered by the district attorney after the first preliminary examination which would meet the newly-discovered-evidence test for a new trial in civil cases under sec. 270.50, Stats. Sec. 955.20 has not been given such a literal and impractical interpretation.

This section and its predecessors have been interpreted as being, in effect, directory only and as relating solely to the duty of district attorneys and as not providing the accused with a defense or operating as a bar to subsequent proceedings involving the same offense. This interpretation is logical and in accord with the longstanding practice of district attorneys of not adducing all the available evidence on a preliminary examination. The section is bottomed on the premise a district attorney puts in all his available evidence and if the evidence is found insufficient, that is the end of the case for all practical purposes unless new and additional evidence is discovered. However, the statute does not purport to cover cases where, after the first preliminary hearing, evidence still exists, whether because of improper exclusion on the first hearing or of failure to adduce it or of being unknown to the district attorney or of other reasons. Nor does the statute prohibit the making of a second complaint for the same charge except by an unnecessary implication. Any person having knowledge or information of the commission of the offense, not just a district attorney, may appear before a magistrate and make a complaint under sec. 954.02, Stats.

Nor do we think the intent of sec. 955.20, Stats., is to give a discharge on a preliminary hearing the effect of an acquittal after a trial on the merits. A preliminary examination is in the form of an inquiry into the facts to ascertain whether the offense has been committed and whether there is probable cause for charging the defendant with the offense so that he might be kept in custody or admitted to bail to stand trial on an information. Johns v. State (1961), 14 Wis.2d 119, 109 N.W.2d 490; State v. McGinley (1913), 153 Wis. 5, 140 N.W. 332. The test is not proof beyond a reasonable doubt but only of probable cause. State ex rel. Sucher v. County Court (1962), 16 Wis.2d 565, 115 N.W.2d 611; State ex rel. Kowaleski v. Kubiak (1950), 256 Wis. 518, 41 N.W.2d 605. The preliminary hearing is not a trial in the sense the accused has been put in jeopardy nor is the discharge from custody upon the failure of proof at a preliminary examination res judicata on the district attorney any more than a bind over for trial is res judicata of the defendant's guilt. Montgomery v. State (1906), 128 Wis. 183, 107 N.W. 14. The doctrine of res judicata is not applicable to preliminary examinations. We held in State v. Fish (1963), 20 Wis.2d 431, 122 N.W.2d 381, a discharge under sec. 955.01, Stats., where a defendant had been bound over on the preliminary examination but no information was filed within six months, did not have the effect of an adjudication of acquittal from the crime complained of and for which the accused was held to answer. A discharge on habeas corpus under sec. 292.20, Stats., would not bar a subsequent proceeding on a second complaint for the same offense under sec. 292.32(2), Stats., if the discharge is for defective proof. Likewise, under sec. 954.12, Stats., the discharge upon a preliminary examination should have only the effect of being a discharge from custody and from the complaint upon which the preliminary examination was held. True, the complaint cannot be used for subsequent proceedings but a new complaint charging the same offense should be allowed. We conclude sec. 955.20 does not clothe or vitalize a discharge under sec. 954.12 with the effect of a determination of an acquittal.

This construction is demanded by the holding, if not the language,...

To continue reading

Request your trial
23 cases
  • State ex rel. Lynch v. County Court, Branch III, 75-807
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 1978
    ...v. Maryland, 373 U.S. 83, 87, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A preliminary examination is not a trial. Tell v. Wolke, 21 Wis.2d 613, 617, 618, 124 N.W.2d 655 (1963). In this sense, the particular charges alleged in the complaint at a preliminary examination must be considered ten......
  • Richmond v. State, 4544
    • United States
    • United States State Supreme Court of Wyoming
    • October 8, 1976
    ...80 (45 S.Ct. 209, 69 L.Ed. 522) (1925). State law is similar. See People v. Dillon, 197 N.Y. 254, 90 N.E. 820 (1910); Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963). In the Tell case the Wisconsin court stated the common rationale for allowing the prosecutor to issue a new complaint an......
  • Matter of Extradition of Lang, CV 95-5468 ER.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 20, 1995
    ...preliminary examination and the discharge on a preliminary would operate as an unchallengeable acquittal. (quoting Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655, 659 (1963), overruled in part by State v. Antes, 74 Wis.2d 317, 246 N.W.2d 671 18 One notable exception to this rule is where the ......
  • Watts v. United States, 21528.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1968
    ...before the judge in question. Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948). 24 Tell v. Wolke, 21 Wis.2d 613, 124 N.W. 2d 655 (1963) (prior discharge after preliminary hearing is not res judicata as to subsequent prosecution on same charge); People v. Van Ey......
  • Request a trial to view additional results
1 provisions
  • 18 APPENDIX U.S.C. § 5.1 Preliminary Hearing
    • United States
    • US Code Federal Rules of Criminal Procedure
    • January 1, 2023
    ...Morse v. United States, 267 U.S. 80 (1925). State law is similar. See People v. Dillon, 197 N.Y. 254, 90 N.E. 820 (1910; Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963). In the Tell case the Wisconsin court stated the common rationale for allowing the prosecutor to issue a new complaint......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT