84 Wis. 27 | Wis. | 1893
By the statute (sec. 4654, R. S.) it is provided that “no information shall be filed against any person for any offense until such person shall have had a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer,” unless the accused waives such right; but the objection for such failure or omission can be taken advantage of only by plea in abatement, as in this case, before pleading to the merits. An information lies only after a legal examination, unless it has been waived. Martin v. State, 79 Wis. 165, 171. An examination regularly and. properly conducted under the statute serves in some sort for the inquisition or finding of a grand jury. The statute regulating such examinations secures certain rights to the accused, among which is the right, under sec. 4809, to have his case removed, upon filing a proper affidavit of prejudice of the magistrate before whom it is pending, “ to the nearest justice or magistrate qualified by law to conduct the. examination, who shall proceed with the examination,”' etc. This is an important and substantial right, of which the accused cannot be deprived except by his own act; and, as examining magistrates derive their jurisdiction and authority to proceed in such cases entirely from the statute, it is plain that an examination such as is required in order to justify the filing of an information cannot take place in any case where the right of removal has been improperly denied.
The filing of the affidavit defeated the' jurisdiction of Commissioner Wentworth, leaving him only to determine by his order what justice or magistrate was in fact the nearest; Jurisdiction of the case could only be acquired by any other justice or magistrate in the manner specified
Eor these reasons the defendant did not have an examination such as the law secured to him before the information was filed, and no judgment could lawfully be given on the information, except to abate or quash it.
By the Court.— The questions submitted are both answered in the affirmative.