Thies v. State

Decision Date08 July 1922
Citation178 Wis. 98,189 N.W. 539
PartiesTHIES v. STATE.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE

Error to Circuit Court, St. Croix County; Gustav G. Gehrz, Judge.

Carl W. Thies was convicted of incest, and appeals. Affirmed.

On the 13th day of May, 1921, one Marie H. Thies made complaint before a justice of the peace for Pepin county that--

“On the 25th day of November in the year 1920, at said county of Pepin, to wit, at the town of Frankfort in said county, Carl W. Thies did unlawfully and feloniously ravish and carnally know her, the said Marie H. Thies, she then and there being a female of the age of 16 years and more, by force and against her will, contrary to the form of the statute,” etc.

A warrant was thereupon issued, and on the 31st day of May, 1921, Carl W. Thies, the plaintiff in error here, but hereinafter referred to for convenience as the defendant, was brought before the justice of the peace for examination. Upon the examination the state introduced no evidence, the defendant waived a preliminary examination, and was bound over for trial at the next regular term of the circuit court for Pepin county. At the next regular term of the circuit court for Pepin county, the defendant before an information was filed made application for a change of venue on the ground of prejudice of the people, and upon his application the court ordered the venue changed to St. Croix county, Wis. The case came on for trial on the 31st day of October, 1921, and the district attorney of Pepin county filed an information against the defendant as follows:

“I, C. A. Ingram, district attorney for Pepin county, Wis., do hereby inform the court that on the 25th day of November, 1920, at said county of Pepin, one Carl W. Thies did then and there commit adultery and fornication upon and with one Marie H. Thies, they not being lawfully married to each other, and being within the degree of consanguinity within which marriages are prohibited and declared by law to be incestuous and void, and the said Carl W. Thies being then and there the father of said Marie H. Thies, and the said Marie H. Thies being then and there the daughter of said Carl W. Thies, contrary to the form of the statute, etc. Dated October 31, 1921.”

The defendant thereupon made a motion to quash the information on the grounds that the circuit court for St. Croix county was without jurisdiction over the person of the defendant, Carl W. Thies; second, that the circuit court for St. Croix county was without jurisdiction of the subject-matter of the offense stated in the information, for the defendant had no preliminary examination, and never waived the same. Both motions were denied. Thereafter the defendant refused to plead to the information, and the court entered a plea of not guilty, and the case proceeded to trial. At the close of the state's case, the defendant moved that the defendant be discharged on the same grounds on which the motion to quash the information was based. At the close of all the testimony,the defendant moved that he be discharged on the same grounds. Both motions were denied. The case was submitted to a jury, which found the defendant guilty of incest, and the defendant thereupon moved the court for an arrest of judgment upon substantially the same grounds upon which the motion to quash the information was based, which motion was denied, and thereupon the court sentenced the defendant to state's prison for the term of 3 years. There was a motion to set aside the verdict and for a new trial in the usual form, which motion was denied. Due exceptions were taken to all of the motions, and a writ of error was sued out to review the judgment of the circuit court for St. Croix county.

E. S. Pattison, of Durand, G. L. Pattison, of Mondovi, and Cowie & Hale, of La Crosse, for plaintiff in error.

Wm. J. Morgan, Atty. Gen., and J. F. Baker, Asst. Atty. Gen., for the State.

ROSENBERRY, J. (after stating the facts as above).

[1] It is contended on behalf of the defendant that the circuit court for St. Croix county had no jurisdiction, for the reason that the district attorney of Pepin county had filed no information prior to the order changing the venue from Pepin county to St. Croix county, and that therefore there was no cause pending within the meaning of section 4679, Wis. Stats.:

“All criminal cases shall be tried in the county where the offense was committed, except where otherwise provided by law, unless it shall appear to the satisfaction of the court, by affidavit, that a fair and impartial trial cannot be had in such county; in which case the court before whom the cause is pending, * * * may direct the person accused to be tried in some adjoining county. * * *”

It is the contention of the defendant that it is the clear purpose and intent of the statute that an indictment or information must be filed before the venue is changed, and the defendant seeks to further sustain the argument by reference to section 4681, Wis. Stats.:

“When the venue is changed to another county in a criminal case the district attorney of the county where the indictment was found or information filed shall prosecute the case for the state. * * *”

Reference is also made to section 4649, Wis. Stats., in regard to filing of informations by the district attorney, and section 4653, Wis. Stats., requiring a statement to be filed at or before the term of the court at which the defendant shall be held for appearance for trial, citing Goyke v. State, 136 Wis. 557, 117 N. W. 1027, 1126.

In this case the order changing the venue was entered upon application of the defendant, and was made for his benefit to the end that he might be given a fair and impartial trial. While the issues are not made up by the issuance of a warrant upon a complaint filed before an examining magistrate and the return of the magistrate to the circuit court finding that an offense has been committed, and that there is probable cause to believe the defendant guilty thereof, nevertheless the cause is pending within the meaning of section 4679, Wis. Stats. Bryant v. State, 158 Ala. 26, 48 South. 543;Hartnett v. State, 42 Ohio St. 568.

[2] Even were it otherwise, the failure to file the information prior to the time that the order changing the venue was entered, which order was made upon the application of the defendant, affects in no manner and to no extent whatever the substantial rights of the defendant. Under no circumstances therefore could it be prejudicial error, but would be at most a mere irregularity which should be disregarded. Section 3072m, Wis. Stats.

[3][4] It is next urged by the defendant that he has had no preliminary examination for the offense charged in the information, and has never waived the same. The complaint upon which the defendant was arrested charged him with the crime of rape, and as to that he waived preliminary examination. The information filed by the district attorney charged him with incest. It is plain, however, that both charges relate to a single transaction or set of circumstances. The only material fact not appearing in the complaint charging him with rape, which appears in the information, is the relationship of the parties, which of course was well known to the defendant. The objection herein interposed is purely technical and in this case at least could not operate to deprive the defendant of any substantial right. However, if the statute accords him the right to a preliminary examination, and he has not waived it, he is not foreclosed from asserting it. This requires us to examine the nature and purpose of the preliminary examination. Section 8 of article 1, Constitution of the state of Wisconsin, as originally adopted, provided that no person should be held to answer a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment or in certain other cases not material here. In 1870 this section was amended to read as follows:

“No person shall be held to answer for a criminal offense without due process of law, and no person for the same offense shall be put twice in jeopardy of punishment nor shall be compelled in any criminal case to be a witness against himself.”

In Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559, it was held that the words “due process of law” do not require a presentment or indictment by a grand jury in a case where a felony is charged; hence the statute providing for information is valid, both under section 8 of article 1, Constitution of the State of Wisconsin, and under the Fourteenth Amendment to the Constitution of the United States.

Since the adoption of the amendment of 1870, a presentment or an indictment by a grand jury has been the exceptional proceeding and by far the greater number of prosecutions in cases of felony have been by information rather than by indictment. The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a...

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32 cases
  • State v. Moats
    • United States
    • Wisconsin Supreme Court
    • June 28, 1990
    ...malicious, improvident, and oppressive prosecutions.' " State v. Dunn, 121 Wis.2d 389, 359 N.W.2d 151 (1984) (quoting Thies v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922)). The jury verdict of guilt in this case demonstrates that the prosecution did not fall into the category of prosecutio......
  • State v. O'Brien
    • United States
    • Wisconsin Supreme Court
    • July 9, 2014
    ...prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.Thies v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922). ¶ 22 More recently, the court reiterated this point explaining that “[r]equiring a finding of probable cause protects the de......
  • State v. Webb
    • United States
    • Wisconsin Supreme Court
    • March 26, 1991
    ...or not there are substantial grounds upon which a prosecution may be based.Id. at 395, 359 N.W.2d 151, quoting Thies v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922). The preliminary examination is "intended to be a summary proceeding." Moats, 156 Wis.2d at 83, 457 N.W.2d 299. Pursuant to se......
  • Johns v. State
    • United States
    • Wisconsin Supreme Court
    • June 6, 1961
    ...whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty. Thies v. State, 1922, 178 Wis. 98, 189 N.W. 539; 14 Am.Jur., Criminal Law, p. 935, sec. 241. The process of extradition satisfies the purposes of a preliminary hearing and......
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