297 N.W. 391 | Wis. | 1941
Upon separate criminal complaints made to the municipal court for the Eastern district of Waukesha county, on July 29, 1940, separate criminal warrants were on said day issued out of said court for the arrest of the plaintiff in error in each of the aforesaid actions. The plaintiffs in error, hereinafter referred to as the "defendants," were charged with having set up, kept, and managed a certain device and construction adapted, suitable, and devised for gambling, and did permit persons to gamble by means thereof, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin. Each complaint and warrant of arrest states the time and place of the commission of the offense charged. Both defendants were arrested and *589 arraigned before said court on July 30, 1940. Each entered a plea of not guilty, whereupon the cases were adjourned until August 8, 1940, and bail furnished.
On the afternoon of July 30, 1940, defendants reappeared in said court with counsel, and each defendant then entered a plea of guilty to the charge set forth in his complaint and warrant. Neither the complaints nor warrants specified the section of the statute under which same were issued. However, the record shows that the district attorney informed the court that he was proceeding under sec.
"Section 1. . . . It has and may exercise powers and jurisdiction concurrent and equal with the circuit court of Waukesha county in all cases of bastardy, crimes and misdemeanors arising in said Eastern municipal district of said county, except murder. Said municipal court in addition to the powers vested therein as aforesaid, is vested with all the powers and jurisdiction of a justice of the peace in the said Eastern municipal district, in bastardy cases, criminal actions and proceedings, and jurisdiction of all prosecutions for breach of any ordinance of any city or village now or which may hereafter be incorporated in said territory; and also all the powers and jurisdiction of a justice of the peace of said county in civil cases and proceedings arising within the said municipal district, and also power to hear and determine any such case although the title to land may come in question therein. The general provisions of law relative to civil, criminal and bastardy cases before justices of the peace, shall apply to said court so far as applicable. . . . The judgments of the municipal court in bastardy and criminal cases tried before it may be examined and reviewed by the supreme court in the same manner as judgments of the circuit court. To carry out its jurisdiction the said municipal court shall have all the powers of circuit courts, and the municipal judge shall have the same powers in all matters pertaining to the jurisdiction of said municipal court, as circuit judges."
Sec.
The unequivocal statement of the district attorney in the record shows that he instituted these prosecutions under sec.
There is nothing in the record to show that either of the defendants waived the filing of an information under sec.
The statutes applicable to proceedings in criminal cases (ch. 355, Stats.) and trials in criminal cases (ch. 357), secs. 355.01, 355.12, 355.17, 355.18, 357.20, and 357.25, provide for the filing of an information in all criminal cases beyond the jurisdiction of a justice court, and under the statutes above mentioned, no distinction is made between misdemeanors and felonies. Sec. 357.01 refers to issues of fact joined upon any complaint, indictment, or information. Apparently the word "complaint," as used in that section, refers only to justice court convictions appealed to circuit court for trial de novo. In such case, it would not be necessary to file an information. In State v. Slowe,
"Misdemeanors are commonly prosecuted upon complaint, although they may be prosecuted by indictment or information."
We find no statutory authority for prosecuting a misdemeanor upon complaint except in justice court trials. Statev. Slowe, supra, involved a justice court trial in which defendant was found guilty and the case was appealed to the circuit court for trial de novo. The rule of that case is not applicable here.
In Application of Willer,
"Section 24. 1. Said judge shall have exclusive jurisdiction to institute and conduct examinations in all criminal and bastardy cases arising within said county and the power and jurisdiction to cause to come before him the persons so charged with committing bastardy or criminal offense, and commit them to jail or bind them over as the case may require, and on a plea of guilty by the accused and a requestby him to be sentenced, the said judge shall have power,authority and jurisdiction to sentence the accused for suchoffense."
Defendant entered a plea of guilty to the offense charged. The record did not disclose that defendant requested the court to sentence him. At pages 286 and 287 the court said:
"The municipal judge of Outagamie county in the issuance of a warrant and the proceeding had was sitting as a justice of the peace. As such he had no jurisdiction to try the petitioner for the offense charged in the complaint. He would have had no jurisdiction to do anything but bind him over were it not for the provision contained in section 24 of the municipal court act. . . .
"In the absence of a request by the petitioner that he be sentenced, the court by the terms of the statute had no jurisdiction to sentence him. While it seems a rather futile proceeding to require, as the act does, that if the person charged with the commission of the offense is brought before the court and enters a plea of guilty he may not be sentenced unless he requests it, nevertheless those are the terms of the act. If he fails to make a request for a sentence, then the only thing the municipal judge acting as a justice of the peace can do is to bind him over for trial, after which, upon renewal of his plea which might be in the other branch of the municipal court for Outagamie county, he might be sentenced because he would then be in a court which had jurisdiction to try the offense."
In that case if defendant had been bound over to the branch of the municipal court having circuit court jurisdiction, the *594 procedure, as provided in ch. 355, Stats., would have required the filing of an information. We conclude that the judgment and sentence in each case must be reversed.
By the Court. — The judgment in each action is reversed, and cause remanded for further proceedings according to law.