77 Wis. 460 | Wis. | 1890
This cause comes to this court upon exceptions allowed and signed by the trial judge, under sec. 4720, R. S. The learned counsel for the defendant contends that the circuit court for Juneau county never obtained jurisdiction of the action by reason of irregularities in the proceedings in changing the venue. It is said that there is no mark or date of filing upon the affidavit of prejudice. But the order changing the venue recites that it was filed; and if it was placed in the custody of the clerk, then it was, in law, duly filed, whether such filing was evidenced by the clerk’s writing the fact of such filing upon it or not. Oer-'-1’ tainly the mere delay of the circuit court for Wood county to make the order changing the venue in accordance with the application of the defendant, as stated, did not deprive that court of jurisdiction to make the order, nor render the order less effectual when made. We must regard the order, therefore, as regularly made and entered July 27,' 1889.
The statute authorized the defendant to apply for such change of venue, “in the manner provided by law for a change of venue in civil actions ” (sec. 4680, R. S.); and he did so (sec. 2625, S. & B. Ann. Stats.). It thereupon became the duty of the court “ to awai’d such change,” and it did. Sec. 4680, R. S. All the original papers appear to have been regularly transmitted to the clerk of the circuit court for Juneau county, July 30, 1889, and duly filed in that court, August. 10, 1889. The mere fact that the clerk neglected to transmit, with the other papers, the minutes of the clerk as to the defendant’s being arraigned and pleading not guilty, and the application for and the awarding of the change of venue, did not prevent such change being effectual. The defendant’s affidavit of prejudice, and the order of the circuit court for Wood county changing the venue therein to the circuit court for Juneau county, vested the latter court with complete jurisdiction of the action. This being so, the court properly refused to remand the
The statute provides, in effect, that when the court has ordered a change of venue, it shall require the accused to enter into a recognizance conditioned for his appearance in the court to which the venue is changed, and to abide the order of such court; and, in default, he shall be imprisoned, etc. Sec. 4682, R. S. Counsel contend that, because this was not done, the circuit court for Juneau county did not get. rightful jurisdiction of the person of the defendant. But the trial judge has certified no objection nor exception to the manner in which the defendant’s personal appearance was obtained in that court. That question, therefore, is not before us for consideration. Had the defendant voluntarily appeared in the trial court to answer the information, no one would have questioned the jurisdiction of that court to have tried him. That court, therefore, as we have seen, had complete jurisdiction of the action; and there is much force in the argument of the attorney general to the effect that the court, having jurisdiction of the action, could make it effectual by coercing the personal presence of the defendant. But, assuming that the defendant was irregularly brought into the trial court, yet that did not deprive that court of jurisdiction to proceed with the trial, nor furnish any reason for arresting the judgment. Besides, as indicated, the question as to whether there was such irregularity' is not before us for review.
The statute also provides that when a change of venue-isr ordered the court shall recognize the witnesses, etc. Sec. 4683, E. S. But no one would claim that a failure to do- so would deprive the court to which the venue is changed of jurisdiction to try the offender. Such order respecting’-the witnesses, and such order- respecting the recognizance and appearance of the offender, are only required-when-the venue has. in .fact been changed, and not as conditions pre
It is, moreover, contended that the information fails to charge the defendant with the commission of any offense under sec. 4380, R. S., as amended by ch. 243, Laws of 1881. This statute is to the effect that any person who shall, by any written or printed communication, maliciously threaten to do any injury to the person, business, or trade of another, with intent to compel the person so threatened to do any act against his will, or omit to do any lawful act, shall be punished, etc. It is contended, in effect, that the defendant, in sending the communication found in the foregoing statement and upon which this prosecution is based, did not threaten to do either of the acts therein mentioned himself, but merely informed the two ladies named what somebody else intended to do if they did not leave the city within the time therein named. In the learned note to the section by Sanborn & Berryman, cases are cited holding in effect that “the crime may be committed by one who sends a letter conveying a threat of some other person to do the forbidden acts, provided he sends the letter for the unlawful purpose mentioned.” People v. Thompson, 97 N. Y. 313. “ The malice required by the statute is not a feeling of ill will towards the person threatened, but the wilful doing of the act with the illegal intent.” Comm. v. Goodwin, 122 Mass. 35. Under these authorities, it would seem the information charges an offense, even if the communication were capable of the construction contended for by counsel. But we think the communication is fairly capable of being construed to the effect that the sender or senders would execute the threat unless the ladies left the city within the time named. It, in effect, therein declared that the ladies
By the OouH.— The exceptions certified are all overruled, and the cause is remanded for further proceedings according to law.
