Kushman v. State Ex Rel. Panzer , 240 Wis. 134 ( 1942 )

Error to review a judgment of the circuit court for Oneida county entered August 22, 1941, discharging the defendant in error from the custody of the plaintiff in error upon a writ of habeas corpus. The defendant in error, hereinafter referred to as the "defendant," was tried in the lower branch of the county court of Oneida county upon a complaint charging a violation of sec. 85.40 (1), Stats. (unlawful operation of a vehicle), before a jury of six persons. The verdict returned by the jury reads:

"We, the jury impaneled in the above-entitled action, for our verdict, find the defendant guilty of the charge as alleged in the complaint.

"Dated this 19th day of August, 1941.

"(Signed) HARLEY FORBES,
"Foreman."

When the jury returned into court with its verdict, and before it was received and read, Mr. Forbes stated:

"We also have some recommendations. Must the recommendations be a part of the verdict?

"Court: Well, you can write them below it.

"Mr. Forbes: It can be written on the same piece?

"Court: Yes, you can.

"Mr. Forbes: For instance —

"Court: It doesn't make any difference. You can write there whatever you want.

"Mr. Forbes: I have written on another piece of paper in pencil.

"Court: We can fasten them together then accept them as one

"Mr. Forbes: That will be accepted?

"Court: Yes. Have you reached a verdict?

"Mr. Forbes: Yes.

"Court (to Mr. O'Melia): Is your man here?

"Mr. O'Melia. Yes.

"Court: Now I will ask the jury if they have agreed on a verdict? A. Yes.

"Q. And is the verdict that you have agreed upon the verdict of each and every one of them? A. Yes.

"Q. You all agree that is your verdict? A. Yes.

"Q. I will receive it."

The verdict was thereupon read. Attached to the verdict the jury made a recommendation for leniency as follows:

"We do not feel that the defendant is entirely at fault, nor is he entirely free from responsibility; for the following reasons:

"1. The pedestrian was partially negligent.

"2. Weather conditions point to an unavoidable accident.

"3. Testimony on his speed indicates caution to some degree."

The court further stated:

"Well, I will receive the verdict. Strikes me as though your verdict and your recommendations are somewhat contradictory, but it will be received as the verdict and you will be discharged from further consideration of the case."

On August 21, 1941, defendant was found guilty by the court pursuant to the verdict of the jury and was sentenced to pay a fine of $10 and costs or to serve twenty days in the county jail, and his driver's license was suspended for a period of six months. Before the court pronounced judgment and sentence, defendant's counsel moved that the recommendation for leniency be substituted for the printed or typewritten verdict of the jury. This motion was denied. On August 22, 1941, defendant petitioned the circuit court for Oneida county for a writ of habeas corpus, alleging that the verdict was "void on its face, or announced a verdict of not guilty," and "that the said imprisonment of your petitioner is illegal and contrary to law;" that petitioner's conviction and sentence were founded upon either a void verdict or a not-guilty verdict; that in neither event did the court have jurisdiction of the person. The plaintiff in error made return to the writ alleging that his authority for the imprisonment of the defendant was the judgment and sentence of the lower branch of the county court of Oneida county, and further alleging that the offense of which defendant was charged was within the jurisdiction of said court; that the court had jurisdiction of the person and the subject matter of the action. Defendant traversed the return, alleging that for the reasons above stated the court was without jurisdiction to impose any sentence upon the defendant. On August 22, 1941, the circuit court made its findings of fact, the two here material being as follows:

"5. That it appearing that the verdict above referred to and rendered in the action herein referred to was a not-guilty verdict as a matter of law and that therefore the acceptance of said verdict immediately removed said Richard Panzer from the jurisdiction of the court and that therefore the sentence pronounced by the Hon. HARRY L. REEVS was in effect void.

"6. That therefore Richard Panzer was being illegally imprisoned and detained by the sheriff of Oneida county."

Whereupon the court adjudged that Richard Panzer, the petitioner, "be and is hereby discharged from the custody and detention of Adolph Kushman, sheriff of Oneida county, state of Wisconsin." The sheriff of Oneida county, from whose custody and detention defendant was discharged, sued out the writ of error herein. The defendant has made and argued several alternative motions in this court to the following effect: (1) That the writ of error be quashed or dismissed because the court lacks jurisdiction; (a) because no notice of writ nor any citation or process was given, and plaintiff in error has no right to writ of error; (b) if the foregoing be denied, then, because the trial court complaint stated no offense; (2) that the writ be dismissed because no bond was given; (3) in the event that the foregoing motions are each successively denied, then, that the writ be dismissed because no printed case has been filed or served; (4) in the event that motions (1) and (2) aforesaid are severally denied, that the record returned be supplemented by including therein the entire proceedings on the offense charged, including the record in the criminal action.

As to point (a) of defendant's first motion, it appears to have been definitely settled by this court in Rolke v. State (1860), 12 Wis. 570, 571, wherein the court said:

"In this state, we believe, the practice has been to file the original writ with the clerk of the court in which the judgment was rendered, who makes return thereto of the proper transcript and record. And when such return of the clerk, with the writ, is filed in this court, we have jurisdiction of the cause, and can proceed to judgment."

In the instant proceedings defendant was notified that the writ had been obtained from this court on the 8th day of November, 1941; that same was then on file with the clerk of the circuit court for Oneida county. Thereafter he was served with the brief of the plaintiff in error which contained a statement of the error relied on; he also received a copy of the court calendar for the term at which the writ was made returnable, and finally the assignment card showing the date on which the case would be heard. The defendant has made a general appearance in this court in response to the writ. As to point (b), the complaint specifically charged defendant with a violation of sec. 85.40 (1), Stats. Defendant entered a plea of not guilty, demanded a jury trial, and the trial proceeded without any challenge as to the sufficiency of the complaint. If it was insufficient for any reason it should have been challenged before proceeding with the trial. Sec. 355.09, so far as here applicable, provides:

"Any objection to a prosecution or the sufficiency of an indictment or information that may be raised by motion to quash, demurrer, plea in abatement, or special plea in bar, shall be so raised before a jury is impaneled or testimony taken, and unless so raised, shall be deemed waived."

By sec. 360.04, Stats., the provisions of sec. 355.09 are made applicable to complaints and trials in criminal cases before justices of the peace. Trials and procedure in the lower branch of the Oneida county court are the same as in the justice courts. In any event, the defendant's petition for the writ of habeas corpus does not allege as a ground of illegality of the imprisonment that the complaint was insufficient. Defendant's first motion is denied.

The second motion, that the writ be dismissed because no bond was given is without merit. The state being the real party in interest in a habeas corpus proceeding growing out of a criminal prosecution, no undertaking need be given. Sec. 274.26, Stats.; State ex rel. Isenring v.Polacheck, 101 Wis. 427, 430, 77 N.W. 708;Drewniak v. State ex rel. Jacquest, 239 Wis. 475,1 N.W.2d 899. This motion is denied.

The third motion to dismiss the writ because no printed case was served or filed is also without merit. Since the record comes to this court on the record as made by the defendant on the habeas corpus proceedings in the circuit court, raising only questions of law, we fail to see any occasion for preparing and serving a printed case; particularly where the brief of the plaintiff in error contains all of the record on the habeascorpus proceedings in the circuit court and fully covers all legal questions raised. This motion is denied.

Defendant's fourth and last motion is that the record returned in response to the writ issued out of this court be supplemented by including therein the entire proceedings in the criminal action in the lower branch of the county court. The writ of error was directed to the judge of the circuit court for Oneida county. The return to the writ brought to this court all of the record presented to the circuit court by defendant in the habeas corpus proceedings. We can only consider the record upon which the circuit judge made his decision. This motion is denied.

Now passing to the merits of the case, we hold that the jury's recommendation for leniency does not impair the verdict. The verdict was complete, agreed to by all members of the jury, and was signed by the foreman. The gratuitous recommendation for leniency penciled on a separate sheet of paper, not signed by the members of the jury or by the foreman, does not vitiate the verdict. O'Neil v. State,237 Wis. 391, 404, 206 N.W. 96, and cases cited. The question of whether errors were committed within or during the exercise of the court's (county court) jurisdiction cannot be raised in a habeas corpus proceeding, and where it appears on the face of the petition for the writ that the court pronouncing judgment and sentencing a defendant had jurisdiction of the person and of the subject matter the application will be denied.In re Elliott, 200 Wis. 326, 328, 228 N.W. 592; sec. 292.22 (2), Stats.

Sec. 292.02, Stats., so far as here material, provides:

"No person shall be entitled to prosecute such writ [ofhabeas corpus] who shall have been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction or by virtue of any execution issued upon such order or judgment."

Sec. 292.21, Stats., so far as material, provides:

"The court or judge must make a final order to remand the prisoner if it shall appear that he is detained in custody either: . . .

"(2) By virtue of the final judgment or order of any competent court of civil or criminal jurisdiction or of any execution issued upon such judgment or order."

Sec. 292.22 (2), Stats., provides:

"But no court or judge, on the return of such writ, shall inquire into the legality or justice of any judgment, order or execution specified in section 292.21."

Nothing will be investigated on habeas corpus except jurisdictional defects amounting to want of any legal authority for the detention or imprisonment. State ex rel. Morgan v.Fischer, 238 Wis. 88, 91, 298 N.W. 353. To same effect see Larson v. State ex rel. Bennett,221 Wis. 188, 194, 266 N.W. 170.

The defendant relies principally on the decision of this court in State v. Wolfrum (1894), 88 Wis. 481,60 N.W. 799. That case was before the court upon appeal. It is not in point in a habeas corpus proceeding.

By the Court. — The judgment of the circuit court for Oneida county, which discharged the defendant in error from the custody of the sheriff of Oneida county, is reversed, and the cause remanded with directions to remand the custody of the defendant in error to the sheriff of Oneida county.