171 Wis. 36 | Wis. | 1920
The defendant’s motion after verdict, among other things, demanded the discharge of the defendant on the ground that the evidence is insufficient to warrant the conviction of defendant of the offenses charged in the information. The record is also clear that the defendant insisted on his discharge by asking the court to direct a verdict of acquittal at the conclusion of all the testimony in the case. It is manifest that the defendant insisted that no case had been made against him and that the court direct that he be discharged from further prosecution in the case. This is the effect of the proceedings in the trial court. In the light of this state of the case, is the state entitled to prosecute a writ of error to review’the case in this court? Writs of error do hot lie at the suit of the state unless they are provided for by statutes which are constitutional, under the provisions of sec. 8, art. I, Const., which provides: “No
There can be no dispute but that defendant was put in jeopardy before the motion for discharge for insufficiency of evidence could be.made. The effect of discharging the defendant for want of sufficient evidence is in legal effect the same as a verdict- of acquittal by jury or a verdict of acquittal directed by the court. Such a discharge by a court of competent jurisdiction is not reviewable by writ of error on the application of the state. State v. Grottkau, 73 Wis. 589, 41 N. W. 80, 1063; Schultz v. State, 135 Wis. 644, 114 N. W. 505, 116 N. W. 259, 571.
Sec. 4724a, Stats., does not provide for a review of the order made in this case, because the order is in substance and effect one discharging the defendant for want of evidence. It is not merely an order in arrest of judgment. That the court had the right to make such an order and that it is final in the case is recognized in- this state. Ohms v. State, 49 Wis. 415, 5 N. W. 827; Prinslow v. State, 140 Wis. 131, 121 N. W. 637; Gerke v. State, 151 Wis. 495, 139 N. W. 404; Devoy v. State, 122 Wis. 148, 99 N. W. 455.
By the Court. — The writ of error is quashed.