12 Wis. 313 | Wis. | 1860
By the Court,
Tbe objection taken by tbe counsel for tbe plaintiff in error to tbe caption, or formal statement, describing tbe court before wbicb, and tbe grand jurors by wliom, tbe indictment in this case was found, are clearly untenable. Tbe caption is in tbe usual form, and contains as full and accurate recitals of tbe preliminary steps or proceedings up to, and including tbe time tbe plaintiff was actually charged with tbe offense, as are commonly found in such instruments. It sufficiently appears before what court tbe prisoner was charged, and that tbe indictment was presented by a jury of good and lawful men, who were duly summoned, empannelled, tried and sworn. Tbe authorities cited only go to tbe extent of showing that indictments defective in these particulars, or by wbicb it appears that tbe preliminary proceedings were irregular, and not in compliance with law, will be considered bad, and that courts will indulge in no presumptions against tbe statements of tbe record. No exceptions having been taken and settled, tbe other objections, save those to tbe form and substance of tbe judgment, cannot be noticed. If a party has any exception to take to tbe proceedings in bis trial, arising out of any matter wbicb does not regularly appear in tbe record, be should make and file bis bill of exceptions, wbicb, being allowed by tbe judge, becomes a part of tbe record, of wbicb be may avail himself upon a writ of error; or in a proper case, be should see that such exceptions are embodied in a proper report, to be made to this court pursuant to tbe provisions of tbe statute. Otherwise, it is impossible for a court for tbe correction of errors, to judicially know that such matters of exception exist.
So far as tbe objections to tbe supposed judgment are concerned, it is perfectly clear that they are well taken. Tbe sentence differs so widely from that prescribed by tbe statute, that there is no room for doubt or comment. Tbe 5th
The case must, therefore, be remitted to the court below, with directions that that court proceed to pronounce the judgment required bylaw. .The plaintiff in error being now confined in the state prison, without legal authority, ought to be surrendered to the sheriff of the proper county, in whose custody he will remain until the proper sentence can be pronounced.