178 Wis. 66 | Wis. | 1922
The defendant contends that the two counts were improperly joined. Sub. (27), sec. 1, of ch. 441 of the Laws of 1921, under which defendant was prosecuted, specifically provides that
“In any affidavit, complaint, information, or indictment for the violation of this chapter, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed,”
It is suggested in defendant’s brief that no preliminary examination was had upon the second count. This is true. The complaint charged the sale to Gribble. Upon the preliminary examination one Howard Rule was permitted to testify that he purchased alcohol from the defendant on a different day and as a separate and distinct transaction. This evidence had no relation whatever to the offense charged in the complaint. It was inadmissible. Fossdahl v. State, 89 Wis. 482, 62 N. W. 185. While the district attorney may file an information against the accused for any offense which the evidence taken upon the examination shows that he has committed (State v. Leicham, 41 Wis. 565; Porath v. State, 90 Wis. 527, 63 N. W. 1061; Dahlgren v. State, 163 Wis. 141, 157 N. W. 531; O’Keefe v. State, 177 Wis. 64, 187 N. W. 656), it has never been held that a preliminary examination can be used for the purposes of a fishing expedition to enable the district attorney to discover what offenses the accused may have committed wholly unrelated to the transaction constituting the offense with which he is charged.
Where a given transaction may constitute two or more offenses the district attorney may frame his information
"The prosecutor, in preparing the information, may use many counts, varying in them the formal and non-essential matters of the crime. He may not add a new offense. To larceny he may not add robbery; nor to' murder arson. Neither may he add to the larceny of one piece of property the larceny o'f another. He may not substitute one offense for another; but he may, by several counts, guard against the contingencies of the testimony.”
( We hold that the defendant did not have a preliminary examination on the second count.
But that the right to a preliminary examination may be waived by the accused is specifically held in State v. Stewart, 7 W. Va. 731, and is held, by the strongest inference, in State v. Leicham, 41 Wis. 565, where it is suggested that the proper practice is for the defendant to plead the want of examination, in abatement of the information, before pleading to the merits. We now hold that the question cannot be raised for the first time after verdict, and that, as the defense that the defendant did not have a preliminary examination on the second count was not brought to the attention of the court prior, to the rendition of the verdict, he must be held to have waived that defense.
It is provided in sub. (32), sec. 1, ch. 441, Laws 1921, that punishment for a first offense under said chapter shall be a fine or imprisonment, and that for a second offense it shall be both fine and imprisonment. The trial court construed the conviction under the second count as a second or subsequent offense and sentenced the defendant to both fine and imprisonment. This is assigned as error. Sec. 1550, Stats. 1898, provided a more severe penalty in case of a second or any subsequent conviction of the same per
In arriving at this conclusion we have not overlooked the provisions of sec. 4738o-, Stats. Secs. 4736, 4737, and 4738, Stats., prior to 1919 authorized more severe punishment for so-called repeaters where the prior conviction was alleged in the indictment or information and proved upon the trial. By ch. 35, Laws 19.19, such additional punishment was authorized where the prior conviction was alleged in the indictment or information or ascertained by the court after conviction; and by sec. 4738a, created by that chapter, the court is required to ascertain in every case of conviction whether the defendant has been previously convicted of any offense in any vcourt, and it is made the duty of the district attorney and sheriff of the county to aid in
By the Court. — The judgment of the circuit court upon the second count is reversed, and cause remanded with instructions to pronounce judgment upon the second count as and for a first offense.