In re Weaver

162 Wis. 499 | Wis. | 1916

Per CuriaM.

The petitioner asks for a writ of prohibition commanding the circuit court for Bayfield county to de'sist from further proceedings in a criminal action pending therein against him on the ground that the examining magistrate lost jurisdiction of the preliminary examination in •the case and hence that there has been no legal examination.

Counsel are entirely mistaken as to the scope and functions •of the writ of prohibition. It is a high prerogative writ by which an inferior court is prevented from going outside of ■or beyond its jurisdiction where there is no other adequate remedy. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. That it should not issue in the present case is apparent for two reasons. ■ First, the entire absence of a preliminary examination in a criminal case does not affect the jurisdiction of the circuit court. Unless the defendant pleads the lack of an examination before pleading .to the merits he waives the point. Sec. 4654, Stats. 1915. This would not be so if the examination were necessary to the jurisdiction. Second, the remedy by plea in' abatement is adequate and complete. If this court could be called upon to try in advance all preliminary objections in criminal cases because there is apprehension that the circuit courts will rule-adversely upon them, the administration of the criminal law would be in a very unsatisfactory state and this court would probably have little time for anything else. To state the proposition is to answer it.

Motion denied.