Pegalow v. State , 20 Wis. 61 ( 1865 )

Cole, J.

When this case was before tbe court at a former time (see 12 Wis., 534), we beld tbat tbe record did not sbow any judgment, and tbe cause was therefore remanded to tbe circuit court witb directions to proceed and render judgment upon tbe verdict. Tbis bas been done. In tbe mean time tbe circuit judge before whom tbe plaintiff in error was tried and convicted, bas gone out of office, and bas been succeeded by tbe present judge, wbo bas pronounced judgment upon tbe verdict in conformity to tbe directions of tbis court. And tbe only question now arising upon tbe record, wbicb we deem of sufficient importance to notice, is, whether tbe circuit judge bad power to pass sentence upon a prisoner convicted before bis predecessor in office. We think tbe circuit judge bad tbis power. Says Cbitty: “ Tbe King’s Bench, being tbe supreme court of criminal jurisdiction, may give judgment in every case, whether tbe indictment was originally taken there, or removed by certiorari from any inferior tribunal.” 1 Cbitty’s Crim. Law, p. 698. Hale says: “ If A. be indicted for felony before justices of tbe peace, oyer and terminer, or gaol delivery, and be convict by verdict or confession, if tbe record of conviction be removed into tbe King’s Bench by certiorari, and tbe prisoner also be removed thither b j habeas corpus, tbat court may give judgment upon tbat conviction, but there must be first a filing of tbe record in tbe King’s Bench, and a commitment of tbe prisoner to tbe custody of tbe marshal, and be must be called to say wbat be can, wby judgment should not be given against him, and thereupon judgment may be given.” 2 Pleas of the Crown, p. 401.

C. J. Stow remarks, in Putnam v. Sweet, 1 Chand., 286, 335, that orn' circuit courts, made by the constitution superior courts of record, are vested with the united powers of the English King’s Bench, Common Pleas, Exchequer and Chancery; and this being so, the judges thereof undoubtedly have power to pass sentence upon a prisoner convicted before then predecessors in office. See section 3, chap. 119, R. S.

It is proper to add that the plaintiff in error was convicted of murder in the first degree, and the statute fixes the penalty for that crime, leaving nothing to the discretion of the court. Where a discretion was given, there might be some reason for saying that the judge who pronounced the sentence should be acquainted with the circumstances of the case as disclosed at the trial, in order to award the proper degree of punishment. But no such reason can apply here.

By the Gourt. — The judgment of the circuit court is affirmed.