Wolke v. Fleming

• Decision Date: 01 September 1964
• Citation: 24 Wis.2d 606,129 N.W.2d 841
• Parties: Michael S. WOLKE, Sheriff of Milwaukee County, Plaintiff in Error, v. Raymond W. FLEMING, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 841

129 N.W.2d 841

24 Wis.2d 606

Michael S. WOLKE, Sheriff of Milwaukee County, Plaintiff in Error, v. Raymond W. FLEMING, Defendant in Error.

Supreme Court of Wisconsin.

Sept. 1, 1964.

Rehearing Denied Oct. 27, 1964.

Raymond W. Fleming, the defendant in error, hereinafter referred to as 'defendant,' was arrested upon a warrant and complaint made January 8, 1964. The complaint charged the defendant with two counts of false swearing before a magistrate in a John Doe hearing in the city of Milwaukee, Wisconsin, on August 21 and September 22, 1962, respectively. The complaint also charged the defendant as chief deputy clerk of the criminal division of the circuit and county courts of Milwaukee county with misfeasance in office on eight counts under sec. 946.12(1) and (2), Stats., in failing to report to the Motor Vehicle Department of the state of Wisconsin within 48 hours as required by sec. 343.29, Stats., the convictions of various persons for traffic violations and on one count for instructing a subordinate to refrain from reporting certain traffic violation convictions. On January 29, 1964, before a preliminary hearing had been held, the defendant procured a writ of habeas corpus to which the plaintiff in error Michael S. Wolke, sheriff of Milwaukee county, made a return. A traverse to the return was made and the plaintiff in error demurred to the traverse. Upon a hearing the trial court ordered the plaintiff in error to release the defendant from custody.

The trial court in its memorandum decision took the view the vital issue presented by the habeas corpus proceeding was whether the magistrate conducting the John Doe proceeding had jurisdiction of the defendant. The trial court held the magistrate had no such jurisdiction, stating: 'Again, we are of the opinion that as no oral or written complaint regarding petitioner was made to the magistrate before he proceeded with the interrogation of petitioner, he had no jurisdiction of the petitioner and the petitioner is entitled to the relief claimed in view of the fact that the complaint and warrant in the criminal action were based wholly on the information obtained in the John Doe proceedings as admitted by the demurrer.' It is the order discharging the defendant which the plaintiff in error seeks to review.

Robert P. Russell, Corp. Counsel, Milwaukee, George Thompson, Atty. Gen., and Robert D. Martinson, Asst. Atty. Gen., Richard L. Cates and John H. Bowers, Sp. Counsel, Madison, for plaintiff in error.

Ray T. McCann, Milwaukee, for defendant in error.

HALLOWS, Justice.

The defendant moved to quash the writ of error on the grounds the writ seeks to review an order for judgment, which order is not appealable. Lentz v. Northwestern Nat. Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722. The order commands the sheriff of Milwaukee county to forthwith discharge the defendant from custody and contains the language, 'Let Judgment Be Entered Accordingly.' A writ of error is proper to review an order or judgment of any court discharging or remanding a person brought up by writ of habeas corpus. Sec. 274.05, Stats. Since the order commands the sheriff to discharge the defendant, it should be governed by this section and not by the exclusionary effect of the more general section 274.33, Stats., relating to appealable orders and judgments.

An order determining the rights of the petitioner in a habeas corpus proceeding is just as appropriate for the purpose as a judgment. Throughout ch. 292, Stats., governing habeas corpus, the statutes refer to orders and not to judgments with the exception of sec. 292.25 where the word 'judgment' is used in the sense of decision or determination. An order discharging or directing the discharge of a prisoner is contemplated by sec. 292.30, Stats., and provision is made therein for its enforcement. Consequently, the language in the order, 'Let Judgment Be Entered Accordingly' is superfluous and should not be given the effect of destroying the appealability of the order which meets the call of sec. 274.05, Stats.

On oral argument and in his brief the defendant stated the warrant and complaint are invalid and without foundation in law because the John Doe proceeding was not founded upon any complaint oral or written. Such allegation of fact is not made in the traverse and thus not admitted by the demurrer. The traverse alleges only no complaint was made 'in reference to your petitioner' and 'in any manner concerning the petitioner.' It is true the trial court in its opinion stated, 'The vital thing in the case is that there was no oral or written complaint to institute the John Doe proceedings.' But this statement must be taken in its context in reference to the defendant.

We consider the trial judge was in error in ordering the discharge of the defendant on the grounds stated in his opinion. As we understand his opinion in the light of admitted facts in the traverse, a complaint and warrant to be the valid end-product of a John Doe proceeding must be based upon testimony taken upon or pursuant to the initial oral or written complaint made against or regarding the person ultimately named in the warrant. However, the validity of a John Doe proceeding under sec. 954.025, Stats., does not depend upon the written or oral complaint naming anyone. The section by its very nature contemplates an investigation into the probable commission of a crime although the perpetrator thereof is unknown to the person making the complaint to the magistrate. The statute requires only that such person have reason to believe a crime has been committed within the magistrate's jurisdiction; it does not require that person to know who committed the crime. It is the purpose of the John Doe proceeding to ascertain whether the crime has been committed and by whom and the extent of such examination is within the discretion of the magistrate which must be reasonably exercised. State ex rel. Long v. Keyes (1889), 75 Wis. 288, 444 N.W. 13. See State ex rel. Jackson v. Coffey (1963), 18 Wis.2d 529, 118 N.W.2d 939. See State ex rel. Kowaleski v. District Court (1949), 254 Wis. 363, 36 N.W.2d 419, wherein the accused was named instead of John Doe. While a John Doe proceeding may be a single-shot investigation, we do not believe it necessarily must be. On the record before us the magistrate had jurisdiction to conduct a John Doe investigation involving the failure to report traffic violation convictions in Milwaukee county.

This review raises an important question of the scope of the writ of habeas corpus when the writ is used immediately after the arrest and before a preliminary hearing is had. Usually the writ is sought after a preliminary hearing has been held or after a judgment or order of a court has been made. At common law and in this state a writ of habeas corpus does not perform the function of a writ of error or an appeal but is confined to an examination of jurisdictional defects or illegality amounting to a want of legal authority for the detention or the imprisonment of the defendant. Larson v. State ex rel. Bennett (1936), 221 Wis. 188, 266 N.W. 170; State ex rel. Morgan v. Fisher (1941), 238 Wis. 88, 298 N.W. 353; State ex rel. Isenring v. Polacheck (1898), 101 Wis. 427, 77 N.W. 708. And, ordinary judicial errors as distinguished from jurisdictional errors are not reached or considered by the writ of habeas corpus. In re Milburn (1883), 59 Wis. 24, 17 N.W. 965. However, in this state especially of late the writ of habeas corpus has been used and recognized as a post-conviction review of errors, whether they be considered jurisdictional or judicial, involving a violation of a constitutional right. Babbitt v. State (1964), 23 Wis.2d 446, 127 N.W.2d 405; State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91; State ex rel. Casper v. Burke (1959), 7 Wis.2d 673, 97 N.W.2d 703. Habeas corpus to review constitutional error is not limited to post-conviction review. Even though habeas corpus may lie before trial to review constitutional error although jurisdiction exists, it does not lie in a situation such as this where another adequate remedy exists.

What amounts to jurisdictional error is a matter of some misunderstanding. As early as 1901 in State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046, 62 L.R.A. 700, this court in an exhaustive opinion discussed the nature and scope of a writ of habeas corpus and held that a writ of habeas corpus reached only jurisdictional error and did not reach beyond the commitment to the proceedings leading up thereto where the person in custody was detained by virtue of the final judgment or order of a court having jurisdiction of the subject matter and the person. This rule, however, did not apply where a person in custody was being held on a commitment for trial because a preliminary examination is statutory and compliance with the statute is a requisite to jurisdiction. Therefore the writ of habeas corpus can be used to test whether there is any competent evidence 'for the judicial mind of the examining magistrate to act upon in determining the existence of the essential facts' and whether the complaint charged an offense known to law.

If an examining magistrate acts without evidence he exceeds his jurisdiction; however, any act upon competent evidence is within his jurisdiction whether he decides the matter wrongly or rightly, and thus the writ will not lie in the latter case. A magistrate acts without jurisdiction if he binds over a defendant solely on testimony of an incompetent witness. Hancock v. Hallmann (1938), 229 Wis. 127, 281 N.W. 703.

What constitutes jurisdictional error or defect prior to the preliminary hearing has been the subject of at least two reported Wisconsin cases. In the first case In re F. S. Eldred, In re Oliver B. Ford (1879), 46 Wis. 530, 1 N.W. 175, a complaint was made to a magistrate for the arrest of Eldred and Ford. A warrant was issued and upon...