Peterson v. State, 45 Wis. 535

Peterson v. State

45 Wis. 535 | Wis. | 1878

Lead Opinion

LyoN, J.

On the 11th day of June, 1874, the district attorney of Calumet county filed in the circuit court for that county an information against the plaintiff in error, charging him with the crime of murder. On the same day, the accused was tried, and convicted of murder in the second degree, and sentenced by the court to imprisonment in the state prison for life. He thereupon sued out a writ of error from this court to reverse the judgment of the circuit court.

Errors are assigned as follows: 1. That it does not appear *540from the record that the accused was arraigned, or that he pleaded to the information; or that the court was sitting when he was tried; or that he was present at the trial; or that a jury was impaneled and sworn; or that he was assisted by counsel; 2. That the record shows that no preliminary examination was had before the information was filed; and 3. That he could not be lawfully tried until the expiration of twenty-four hours after service upon him of a copy of the information, and delivery to him of a list of the jurors. These alleged errors will be considered in their order.

I. After return was made to the writ of error herein, a paper purporting to be an amended return from the clerk of the circuit court was filed in the case, but by what authority the record does not disclose. Still later, however, the counsel for the plaintiff in error, with the consent of the attorney general, procured to be filed in this court the original minutes kept by the clerk of the circuit court, duly certified by that officer. Such original fully verifies the accuracy of the amended return ; and we think that the filing thereof is, under the circumstances, a waiver of any irregularity in the filing of such amended return. It is the duty of the clerk to keep minutes of the proceedings in every case in the court, civil or criminal. Burrill defines a clerk as “an officer of a court who keeps its minutes, or records its proceedings, and has the custody of its records and seal.” Law Diet., “ Cleeic.” It is the constant practice in this court to treat such minutes, on all subjects which are properly matters of record, as importing verity.

The amended return removes all of the objections above mentioned. It shows that the plaintiff in error was duly arraigned at the bar of the court upon the information, and pleaded thereto “not guilty; ” that the court was sitting during all the proceedings in the case; that the jury before whom he was tried, was duly impaneled and sworn; and that he was present at the trial, and was assisted in his defense by counsel.

II. The learned counsel for the plaintiff in error is evidently mistaken in assuming that the record shows affirmatively that no examination of the accused was had before the information *541was filed. "We find in the record a paper headed “ Bill of Exceptions,” which contains nothing but the record of an inquest taken before a justice, of the cause of the death of the person named in th« information as having been feloniously killed and murdered by the plaintiff in error. Appended to this we find the following certificate of the circuit judge: “ The within and foregoing bill of exceptions contains all the proceedings of such examination as was had in the case of the said Gustaf Peterson,' before a justice of the peace, prior to the filing of the information in said suit of the state of Wisconsin against the said Gustaf Peterson, on file in the office of the clerk of the circuit court of Calumet county.” This certificate is the only thing in the record which gives any color to the claim of counsel. Now if the learned circuit judge intended to certify (which may well be doubted) that no examination of the accused was had before a justice of the peace before the information was filed, he certainly does not certify that the records in his court fail to show that any such examination was had before a judge of a court of record, or a court commissioner. The statute gives to those officers the same power to examine and hold to bail or commit persons charged with crime, that it confers upon justices of the peace. E. S., ch. 176, sec. 1.

If such examination was essential in this ease before the information could properly be filed (a point we do not here decide), the fact that there had been such an examination need not be stated in the information, or shown affirmatively by the prosecution. The want of an examination is matter in defense or abatement, to be established by the plaintiff in error. He has not done so; and hence, the alleged error under consideration is not well assigned.

III. The statute which requires that a copy of the information be served upon the accused twenty-four hours before trial (E. S., ch. 177, sec. 4; Tay. Stats., 1927, § 4) is not jurisdictional, but grants a privilege to the accused which he may waive. We think that the plaintiff in error waived such privilege by going to trial without objection on the day the in*542formation was filed. The same observation applies to the next succeeding section, which gave him the right to have, on demand, a list of the jurors furnished him twenty-four hours before trial. The record fails to show any such demand.

"We fail to find any error in the record before us, and must, therefore, affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

Rehearing

The plaintiff in error moved for a rehearing; and the following opinion was filed at the January term, 1877.

Lyon, J.

We cannot doubt that, under the statute (Laws of 1867, ch. 150, secs. 5 and 6; Tay. Stats., 1517, §§ 11 and 12), the entries of those proceedings in a case in open court, which the statute requires the clerk to enter in the minute book kept by him, are matters of record, and, if returned here on a writ of error, are properly before us as a part of the record.

But a reexamination of the case on this motion leaves us in doubt whether we have before us the record contained, or which should be contained, in the minute book. The clerk certifies that he has returned his original minutes, and designates three sheets of manuscript sent up by him as being such minutes; but we do not find his certificate that he has returned his minute booh, or a transcript thereof.

This apparent defect may be supplied or cured by a further return to the writ of error, or an argument may convince us that it is not a real defect; but as the case stands, we do not feel that we ought to sustain a judgment which consigns the plaintiff in error to imprisonment in the state prison for life, without further argument and investigation on this point. On all other points mentioned in the opinion, we are entirely satisfied with our former decision, and do not think that our views are likely to undergo any change.

By the Court. — The motion for a reargument is granted; but the argument will be confined to the point above indicated, concerning which we have doubts.

After a reargument, the following opinion was filed, and the *543judgment of the court below affirmed, at ■ the August term, 1878.

Lyon, J.

"When this case was first considered, we reached the conclusion that the record disclosed no error, and hence, that the judgment of the circuit court ought to be affirmed.

On the motion for a reargument, we again carefully examined the case, and were satisfied that our conclusion was correct on the merits. But an apparent defect was discovered in the return to the .writ of error, which led us to doubt whether the record contained a transcript of the entries in the minute book kept by the clerk of the circuit court who made the return. A reargument was therefore ordered on that question, and it was suggested that if the record was defective in the particular indicated, the defect might be supplied by a further return to the writ.

The attorney general has acted upon that suggestion, and by leave of court has procured an amended return from the clerk of the circuit court, containing a duly certified transcript of the entries pertaining to the case in the minute book kept in his office. This return fully supplies the possible defects in the former return. The record now contains what it was understood to contain when the case was first considered. We find in it no valid reason for disturbing the judgment.

By the Court.- — Judgment affirmed.