Wittke v. State ex rel. Smith

• Decision Date: 01 November 1977
• Docket Number: Nos. 76-610-C,76-611-CR,s. 76-610-C
• Citation: 80 Wis.2d 332,259 N.W.2d 515
• Parties: Leland WITTKE, Sheriff of Racine County, Plaintiff in Error, v. STATE of Wisconsin ex rel. John SMITH, Defendant in Error. STATE of Wisconsin, Plaintiff in Error, v. John A. SMITH, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 515

259 N.W.2d 515

80 Wis.2d 332

Leland WITTKE, Sheriff of Racine County, Plaintiff in Error, v. STATE of Wisconsin ex rel. John SMITH, Defendant in Error.

STATE of Wisconsin, Plaintiff in Error, v. John A. SMITH, Defendant in Error.

Nos. 76-610-CR, 76-611-CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 1977.

Decided Nov. 1, 1977.

David J. Becker, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. La Follette, Atty. Gen., for plaintiffs in error.

Melvin F. Greenberg, Asst. State Public Defender (argued), with whom on the brief was Howard B. Eisenberg, State Public Defender, for defendant in error.

CONNOR T. HANSEN, Justice.

This matter is before the court on two writs of error issued at the instance of Leland Wittke, Sheriff of Racine County, plaintiff in error, and the State of Wisconsin, plaintiff in error (hereinafter plaintiffs).

One writ of error is to review an order of the county court which dismissed a criminal complaint, following a preliminary examination, for failure to show probable cause that a felony had been committed by John Smith, also known as John A. Smith, defendant in error (hereinafter defendant).

The second writ of error is to review an order of the circuit court which made absolute a writ of habeas corpus and discharged the defendant following the issuance of a second criminal complaint against the defendant.

The defendant has filed a motion with this court to dismiss the review of the order of the county court dismissing the criminal complaint against the defendant following the preliminary examination. The defendant alleges the plaintiffs have waived any right to bring such a review because of the issuance of the second criminal complaint. We reserved decision on this motion pending consideration on the review of the writs of error on their merits and now deny the motion to dismiss.

Briefly stated, the facts that produced this review are that on November 27, 1976, Racine police officers responded to a "family problem" call involving the defendant. The defendant had been drinking, had quarreled with his wife, and had locked her out of their apartment. When the officers attempted to persuade him to allow his wife into the apartment or to give her their six-week old baby, the defendant lunged at them through the partially open door with a ceremonial sword, approximately three feet long. After lunging several more times and threatening to "run (the officers) through" and "do (them) in," the defendant emerged from the apartment and struck one of the officers several times with the sword, causing bruises and minor lacerations. The incident is described more fully in our discussion of the issues.

Four days later, the defendant was charged with attempted murder. At a preliminary examination before the county judge, two of the officers gave their accounts of the incident. The defendant's wife, who did not witness the incident itself, testified to surrounding events.

At the conclusion of testimony the county judge ruled that the state had not established probable cause to believe that a felony had been committed. Accordingly, on December 28, 1976, he entered an order dismissing the complaint and discharging the defendant. A writ of error issued to review this order.

On December 10, 1976, the day following the preliminary hearing, a second complaint was issued against the defendant. This complaint, based on the same incident, charged the defendant with battery to a peace officer, sec. 940.205, Stats., and endangering safety by conduct regardless of life, sec. 941.30.

The defendant petitioned for a writ of habeas corpus and a hearing was held before the circuit judge on January 25, 1977. At this hearing, the state stipulated that it had no further testimony to offer other than the cumulative testimony of the third officer at the scene.

Relying on State v. Antes, 74 Wis.2d 317, 246 N.W.2d 671 (1976), the circuit judge ruled that a second complaint may be issued only when supported by new or unused evidence, and that testimony which is merely cumulative or corroborative is not "new evidence" when the credibility of the original evidence was not in doubt. The circuit judge then entered an order sustaining and making absolute the writ of habeas corpus and discharging the defendant. A writ of error also issued to review this order.

We believe these reviews present the following issues:

1. After dismissal of a criminal complaint for lack of probable cause, may a new complaint be issued in the absence of additional evidence?

2. Does a district attorney, by filing a second criminal complaint, waive the right to appeal the dismissal of a first complaint for lack of probable cause?

3. If the right to appeal has not been waived, was the evidence adduced by the state sufficient to establish probable cause to believe that the defendant had committed a felony?

ISSUANCE OF SECOND CRIMINAL COMPLAINT.

The first issue presented is whether this court's decision in State v. Antes, supra, bars the issuance of a second criminal complaint in the absence of additional evidence. ¹ Prior to Antes, the controlling cases were Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963), and State ex rel. Beck v. Duffy, 38 Wis.2d 159, 156 N.W.2d 368 (1968). These decisions allowed the state to reissue the complaint after a dismissal at a preliminary examination.

Tell and Beck construed sec. 955.20, Stats. (now sec. 970.04), ² which permitted reissuance only upon the discovery of additional evidence, to be directory only and not to bar the filing of a second complaint. In Beck, supra, the court was unpersuaded by the argument that the state would adduce the same evidence at a second examination as it had at the first. Even if this were true, the court concluded, the state could reissue the complaint because:

" '. . . The state has no appeal from errors of law committed by a magistrate upon preliminary examination and the discharge on a preliminary would operate as an unchallengeable acquittal . . . The only way an error of law committed on the preliminary examination prejudicial to the state may be challenged or corrected is by a preliminary examination on a second complaint. . . .' "

". . . The state is entitled to its day in the supreme court on any errors of law that may have been committed by the trial court. Permitting a second complaint, as in the instant case, is the only way it can have that day. . . ." State ex rel. Beck v. Duffy, supra, 38 Wis.2d 166, 156 N.W.2d 372, quoting Tell v. Wolke, supra, 21 Wis.2d 619, 620, 124 N.W.2d 655.

In State v. Antes, supra, this court reconsidered the appealability of orders entered in connection with preliminary examinations. Antes involved an order which dismissed an information charging armed robbery, but granted leave to the state to amend the information to charge robbery. The court held that this order was a final order, appealable by the state, because it precluded trial on the armed robbery charge. The court further stated that where the state has no additional evidence or believes an error of law has been committed, an order discharging the defendant at a preliminary hearing may be appealed. State v. Antes, supra, 74 Wis.2d at 323, 246 N.W.2d 671. The contrary language in Tell and Beck was withdrawn as unnecessary to support those decisions.

The plaintiffs argue that Antes modifies Tell and Beck only insofar as they precluded appeal, and that Antes leaves open the state's option to issue a second complaint. They point out that Antes specifically endorsed Tell and Beck as "judicially sound decisions" which "correctly construed sec. 955.20, Stats. (970.04)" and which "were based on sound policy." State v. Antes, supra, 323, 246 N.W.2d 674.

A close reading of Antes, however, reflects that the court's approval was not directed toward reissuance of a complaint on the same evidence. Rather, the judicially sound core of Tell and Beck, approved and preserved by Antes, was the holding that a second complaint may be issued when the state has evidence which is new or unused. Thus, the court described Tell as:

". . . primarily a holding that when new or unused evidence would support a finding of probable cause a second complaint could be issued. . . ." State v. Antes, supra, 322, 246 N.W.2d 673.

The court went on to say that:

"If the district attorney has evidence which will show probable cause that a defendant committed a crime and this evidence was not used at the first preliminary, he ought to be able to reissue . . .

"Tell and Beck, supra, stand for the proposition that after the discharge of a defendant at a preliminary examination the state may reissue a complaint if it has or discovers additional evidence. See sec. 970.04, Stats. But if the state has no additional evidence or believes an error of law was committed it should be able to appeal. State v. Antes, supra, 323, 246 N.W.2d 674.

Defendant contends that the only recourse this language affords the state, when it has no additional evidence, is that of appeal. The principal rationale for allowing a second complaint on the same evidence in Beck, supra, was the absence of any other remedy for errors prejudicial to the state. By allowing appeal in such cases, Antes, supra, removed this justification. Most important, Antes' holding of appealability arises from a determination that, where an alleged error of law has been committed or there is no additional evidence, an order dismissing the complaint is a final order. By definition, a final order " ' ". . . closes the matter and precludes further hearing and investigation. . . . " ' " An order is not final if it does not " '. . . completely dispose of the subject matter and settle the rights of the parties. . . .' " Antes, supra, 321, 246 N.W.2d 673, quoting Herman Andrae Electrical Co. v. Packard Plaza, Inc., 16 Wis.2d 44, 48, 113 N.W.2d 567 (1962).

This court's holding of finality is incompatible with the state's theory that a...