*1 error, Defendant Sheriff, Plaintiff in Fleming, Wolke, in error.* 1, 1964. July September * costs, denied, rehearing without on October Motion for 1964.
For in error the cause plaintiff was argued by Plats, Robert D. Martinson and William A. assistant at- Bowers, torneys counsel, and John H. general, special Madison, Russell, with whom on the brief were Robert P. counsel of corporation Milwaukee county, George Thomp- son, Cates, counsel, and Richard L. attorney general, special of Madison.
For the defendant in error there was a brief and oral T. McCann by Ray Milwaukee. The defendant moved to the writ Hallows, quash J. of error on the the writ grounds seeks to review an order for which judgment, order is Lentz v. appealable. Northwestern Nat. Casualty Co.
569, 120 N. W. 722. The order commands the sheriff of Milwaukee to county forthwith discharge defendant from custody contains the “Let language, Be Entered Judgment A writ of is Accordingly.” error an proper review order or court judgment any dis or charging remanding person writ of brought up by habeas 274.05, Sec. corpus. Stats. Since the order com mands the sheriff to defendant, it discharge should be governed this section and not effect exclusionary of the more section 274.33 general relating appealable orders and judgments.
An order determining rights in a petitioner habeas corpus just as for the appropriate as a purpose judgment. Stats., ch. Throughout gov- habeas erning corpus, statutes refer to orders and not to with the judgments exception sec. 292.25 where the word is used in the “judgment” sense of decision or deter- mination. An order discharging directing discharge *6 and provision sec. 292.30 is contemplated by
of a prisoner the Consequently, enforcement. for its is made therein Accord- Entered order, Be “Let Judgment in the language the effect of be not given and should is superfluous ingly,” meets the order which the appealability destroying call of sec. 274.05. stated defendant in his brief the and oral
On
founda-
invalid and without
are
and complaint
the warrant
not found-
was
the
Doe proceeding
because
tion
law
John
written. Such allegation
oral or
any complaint
ed upon
admitted by
not
traverse and thus
made
the
is not
fact
no
was
complaint
The traverse alleges only
demurrer.
the
manner
and “in any
reference to your petitioner”
“in
made
trial court in its
It is true the
the petitioner.”
concerning
in the case is that there was
stated, “the vital thing
opinion
Doe
institute the
complaint
oral or written
no
John
taken in its
must be
this statement
But
proceedings.”
to the defendant.
in reference
context
in error
ordering
trial
judge
consider
We
in his
stated
on the
the defendant
grounds
discharge
of ad-
in the
his opinion
light
understand
As we
opinion.
traverse,
and warrant to be
a complaint
in the
mitted facts
Doe
must be
of a
proceeding
end
the valid
product
John
or
to the initial
taken upon
pursuant
based upon
made
against
regarding
or written complaint
oral
However,
in the warrant.
named
ultimately
person
954.025,
Doe
under sec.
of a
proceeding
validity
John
or oral
Stats.,
written
complaint
does
depend upon
The
its
nature contem-
very
section
anyone.
naming
into the
commission of a
probable
an investigation
plates
thereof is unknown to the
the perpetrator
crime although
to the
statute
magistrate.
making
complaint
person
reason to
that such
have
believe a
person
only
requires
committed within
jurisdic-
has been
magistrate’s
crime
tion; it does not
that
require
know who commit-
person
ted the crime. It is the
purpose
John
to ascertain whether the crime has been committed and by
whom
extent of such examination is
within
discretion of the
which must be
reasonably
exercised. State ex rel.
Long
Keyes
288,
This review raises an
important question
scope
the writ of habeas corpus when the writ is used immediately
after the arrest and before a
is had.
preliminary hearing
the writ is
Usually
after a
sought
has
preliminary hearing
been
held
after a
or order
judgment
of a court has been
made. At common law and in this state a writ of habeas
does not
corpus
function
perform
of a writ of error or
an
but is confined to an
appeal
examination of jurisdictional
defects or
to a
illegality
want of
amounting
legal authority
for the detention or the
imprisonment
defendant.
Larson v. State ex rel. Bennett
221
188,
(1936),
Wis.
266
170;
N.
ex
W.
State
rel.
v.
Morgan
Fischer
238
(1941),
88,
353;
Wis.
N.
298 W.
State ex rel. I
v. Pola
senring
427,
check
101
(1898),
Wis.
And,
614 review as a postconviction been used and recognized
has or judicial, errors, jurisdictional be considered they whether v. Babbitt right. a constitutional a violation of involving 405; 446, 127 N. W. (2d) 23 (2d) State (1964), Wis. 486, 22 (2d) v. Burke Wis. ex rel. Burnett State v. Burke 91; ex rel. Casper State 126 N. W. (2d) 703. Habeas 673, corpus N. W. 97 limited to error is not postconviction constitutional review to re- before trial habeas lie corpus may Even review. though exists, it error jurisdiction constitutional although view another ade- as this where lie in a situation such does not exists. quate remedy error is a matter of some
What amounts jurisdictional Durner in State ex rel. as 1901 As misunderstanding. early N. W. Huegin (1901), the nature and in an exhaustive discussed this court opinion that a and held writ corpus of a writ of habeas scope error and did reached only jurisdictional habeas corpus the commitment to the leading up reach beyond proceedings was detained virtue thereto where the custody person of a court the final or order having jurisdic judgment rule, This matter and how subject person. tion of ever, did not where apply person custody being trial on a commitment for because exam held preliminary ination is with statute is a statutory compliance *8 Therefore the to writ of habeas jurisdiction. requisite to test there can be used whether corpus any competent the mind of the “for judicial examining evidence magistrate in the existence of the to act essential upon determining facts,” the an and whether offense known complaint charged to law. acts
If an without evidence he examining magistrate however, exceeds his act jurisdiction; any upon competent within his whether he evidence is jurisdiction decides the
On Ln
writ
lie
matter
and thus the
will not
wrongly
rightly,
latter
if
in the
case. A
acts without
magistrate
jurisdiction
he binds over a defendant
on
of an in-
solely
witness. Hancock v. Hallmann
229
competent
(1938),
127,
Wis.
What prior the has been the of at least two subject preliminary hearing case, In Wisconsin cases. the first In re F. S. reported In re B. Eldred. Oliver Ford
N. a was made W. to a for the complaint magistrate arrest Eldred A and Ford. warrant was issued and upon their arrest their freedom a writ of habeas they sought The the return to writ was the corpus. traversed and state demurred, as was done the instant The trial case. court held arrest was to a issued warrant. pursuant legally On this court said the writ of habeas appeal corpus where is held raises prisoner by legal process only question of the court or officer jurisdiction to issue process arrest. The court then considered the facts the traverse as bore on the they jurisdiction question justice of as an to entertain peace examining complaint the defendants and decided he no against jurisdiction had issue warrant on which arrests were made because the offense in the alleged complaint committed his county. case, ex
In second State rel. Hellige Milwaukee 277, 279, 164 N. W. Liedertafel relator virtue of arrested a warrant issued aby court circuit commissioner. warrant was founded on a case, verified and an affidavit in civil complaint both the relator as treasurer stating fraudulently misapplied cor funds. arrest the his relator porate Upon secured a writ of habeas corpus and was from discharged custody sheriff. this court held order of Upon appeal arrest was *9 and affidavit in the civil action upon issued
properly to decide it stated, unnecessary makes “This holding in a remedy is a habeas corpus proper whether question without a sufficient has been issued where the warrant case motion to vacate case a affidavit, whether such Stats, sec. is 264.28], sec. order under [now exclusive remedy.” Eldred-Ford Durner v. and Huegin
It is under clear The must offense. that the warrant some charge Cases are and warrant illegal, defendant claims the complaint offense. void, fail to state any of no effect because they and' i.e., on several first This is based grounds, count, and “against peace dignity mandatory language Stats., omitted, is the state” sec. by 955.14(2), required no and counts offense because first second charge cannot constitute false under sec. oral testimony swearing It that in three of the nine 946.32 is also argued (1) (a). n that counts misfeasance office remaining charging acts are to have occurred alleged subsequent January 1962, when the defendant was clerk rather than a deputy the clerk the criminal courts Milwaukee county. each count is because of sufficiency remaining challenged the absence of an viola- date traffic allegation not to have tion conviction which was been alleged reported within hours. forty-eight
It
is not
to answer all these
If
contentions.
necessary
offense,
one count
an
the warrant
is
charges
sufficient
any
arrest
to sustain the defendant’s
and detention. We con-
three to eleven
stated
sider counts
offenses
adequately
known
to law and
the warrant. The rule of
is
support
certainty
violated
There is no
allegations.
statutory require-
ment that the date of the convictions be
Each
alleged.
mis-
feasance in office
to consist of
alleged
failing
report
as
conviction within
hours
forty-eight
required
statute.
*10
The
the
on
defendant
sufficiently
specific
allegations
charge
dates
failure to
convictions within forty-eight
report
.with
of
hours from the time
such
The
conviction.
complaint
on it
a collateral attack
and
ambiguous misleading
should be
in
of
Heck
construed
favor
liberally
jurisdiction.
man v. Swartz
64
The magistrate the warrant and 954.025, in issuing sec. act under a nullity. arrest was not because his is illegal imprisonment
Defendant also argues amendments Fifth and Fourteenth violation im he since was entitled constitution States United 325.24, Stats., for except under sec. for testifying munity Davidson State v. is not Under charged. which perjury 275, the 406, N. W. immunity *11 his when the defendant claims statute only that applies self-incrimination, which against constitutional privilege is this The Davidson decision not done defendant. federal standard contrary affected by any interpreting not v. Fifth The decision United States the amendment. 424, 409, Ed. 317 63 Ct. 87 L. Sup. Monia U. S. (1943), 376, a similar federal statute as pro somewhat construing not does establish federal an automatic a immunity viding facts us nor is it before binding standard applicable this in its construction of what the court Wisconsin upon 325.24, meant sec. Stats. Additional creating legislature under the constitution be since defendant’s ly, right may waived, a violation of such is but right jurisdictional I error, State ex rel. v. Polacheck judicial senring (1898), 427, N. and such errors 101 Wis. 77 W. bemay gov rule, ante, State, the harmless-error Pulaski v. erned by 450, 129 N. W. 204. p. (2d) the defendant the warrant was
Finally, argues illegally and a because Doe nullity issued were proceedings John and can therefore be no as a testimony considered illegal for the This basis is based complaint. upon manner in which the conducted, its general proceeding duration, its multiplicity purposes, various long abuses of violations of and discretion on secrecy, the part of the misuse and a judge. violation of
619 were criticized secrecy and condemned in State ex rel. Niedziejko Coffey N. W. (2d) 96. None of the reasons (2d) advanced the defendant seem to us to to the Doe go validity proceeding. John is This not to a say magistrate conducting cannot exceed his or lack of authority jurisdic tion. We have his recognized exceed magistrate may in such a authority State ex rel. Jackson v. proceeding. Coffey 118 N. W. 939. But on the record and as the matter is on this presented review, we cannot find the was without magistrate juris diction to issue a warrant for the defendant’s If arrest. there is evidence of any competent the commission of a it, crime and who committed has jurisdiction. Whether such evidence or identification is sufficient meet cause is a probable question judicial error for the redress of which the defendant has remedies other adequate than habeas corpus.
By Court.—The order directing discharge defendant in error W. Raymond re- Fleming hereby versed and action remanded with directions to quash the writ of habeas corpus remand the defendant in *12 error to in custody error. plaintiff took no J., part.
Heffernan, I concur in the result and Fairchild, (concurring). J. in that of part which it is opinion determined that the 8, 1964, filed complaint was January sufficient on its face to the issuance of the warrant and the support detention there- under of defendant in error. I also that agree defendant raise, error can motion in the action, criminal suppress his claim that his own in the Doe proceed- John obtained. Should the ing illegally alleged invalidity the merits of material on Doe become proceeding John then. action, he can his challenges pursue however, record a feel, differing
I that I must respectfully court, de- in one view particular. opinion Doe initiated the that which complaint ciding John in- broad to authorize enough apparently convictions, failure to traffic violation report vestigation that where information which upon to hold appears is based came from pro- criminal complaint could not authorize issuance such complaint ceeding, had jurisdiction unless the had a warrant of offense It does not seem to type alleged. investigate me of the statute nor consideration any that any provision view, fairness that and I of fundamental would requires look to the criminal sufficiency only complaint upon the warrant was issued. which to state that Mr. Chief
I am authorized Currie Justice in this joins opinion.