State v. Green ( 1973 )

Per Curiam.

The action was commenced on March 9, 1970, with a complaint charging Gilbert Green with the violation of sec. 944.21 (1) (a), Stats, (possession for sale of obscene material). The defendant was convicted following a jury trial, and a fine was imposed. The appeal is taken from the judgment of conviction and from an order denying motions after verdict.

Our disposition of this case is governed by State v. Schneider, ante, p. 563, 211 N. W. 2d 630. As in Schneider, the attorney general petitioned this court to confess error because the information in this case failed to allege scienter. The information stated: “. . . the said Gilbert Green did Unlawfully, feloniously sell lewd, obscene or indecent pictures . . . .” Upon the original consideration of the attorney general’s motion to confess error, the motion was denied and the matter was reserved to abide the presentation of the case on appeal. On appeal the attorney general posed the same arguments as made in Schneider.

We conclude that, consistent with our ruling in Schneider, the information was void. It did not charge scienter, and it was therefore jurisdictionally defective. Had there been a valid complaint in the case, we would conclude that the magistrate had jurisdiction to proceed to the bindover to the trial court. If such were the circumstance, we would remand the case for further proceedings subsequent to the bindover. However, our examination of the record shows that the complaint was fatally flawed in that it, too, failed to allege scienter. Accordingly, as in Schneider, no court acquired jurisdiction over the defendant.

The motion of the attorney general to confess error is granted. The proceedings in the action are set aside as being wholly void, and the judgment, sentence, and order are vacated. Since no jurisdiction was acquired over the defendant, future prosecution, not barred by the statute of limitations, may be initiated in the discretion of the prosecutor.