STATE EX REL. BECK v. DUFFY, 38 Wis.2d 159 (1968)

156 N.W.2d 368

Supreme Court of Wisconsin.January 29, 1968. —
February 27, 1968.

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APPEAL from an order of the circuit court for Milwaukee county: ERWIN C. ZASTROW, County Judge of Walworth county, Presiding. Affirmed.

As a result of John Doe proceedings in Milwaukee county, a criminal complaint and warrant were issued on February 10, 1964, charging appellant, Joseph Beck, and Irvin Beck with five counts of conspiracy in setting up gambling devices in Milwaukee county. The complaint was signed by Assistant Attorney General LeRoy L. Dalton.

An extensive preliminary examination was conducted by County Judge CHRIST T. SERAPHIM, sitting as a magistrate. On August 20, 1964, the magistrate made a finding of probable cause and the appellant was bound over to circuit court for trial. The case was assigned to Waushara County Judge BOYD A. CLARK, sitting as an acting circuit judge in Milwaukee county.

On February 19, 1965, an information was filed by Attorney General Bronson C. La Follette. Prior to arraignment, appellant filed a motion to dismiss. On October 19, 1965, Judge CLARK entered an order granting appellant’s motion to dismiss.

The state filed a notice of appeal from Judge CLARK’S order. On February 16, 1966, this court granted appellant’s motion to dismiss the appeal on the ground that Judge CLARK’S order was not appealable.

On July 21, 1966, a new criminal complaint and warrant were issued. They again charged the appellant with

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conspiracy in setting up gambling devices. Appellant was brought before County Judge F. RYAN DUFFY, JR., who scheduled a preliminary examination for September 7, 1966.

The appellant then brought a petition for a writ of prohibition commanding Judge DUFFY to desist from any further proceedings in the case. On August 31, 1966, acting Circuit Judge ROBERT J. MIECH ordered that the writ of prohibition issue. The alternative writ of prohibition was issued and a return made by the attorney general.

A hearing was conducted on the writ by Walworth County Judge ERWIN C. ZASTROW, sitting as an acting circuit judge in Milwaukee county. On March 18, 1967, the trial court rendered its decision dismissing the petition for a writ of prohibition and quashing the alternative writ of prohibition. On May 4, 1967, the trial court ordered that a writ of consultation issue and the writ was issued pursuant thereto on July 25, 1967. Joseph Beck appeals from that order.

For the appellant there were briefs and oral argument by John A. Keck and Ray T. McCann, both of Milwaukee.

For the respondent the cause was argued by Robert E. Sutton, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, an William A. Platz, assistant attorney general.

WILKIE, J.

Preliminary to our consideration of the issues presented on this appeal it should be noted that it is undisputed that the writ of prohibition was the appellant’s proper remedy.

We have held that the writ of prohibition may be invoked “in cases of a nonjurisdictional error when the appeal may come too late for effective redress, or be inadequate and there is a need for such intervention to

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avoid grave hardship or a complete denial of the rights a litigant.”[1]

Reaching the merits of this appeal, two issues are presented:

1. Is the attorney general properly authorized to appear in this action?

2. Are the recommencement proceedings proper?

Appearance of Attorney General in this Civil Action.
Appellant contends that the Milwaukee county district attorney, not the attorney general, is the proper party to defend this prohibition action. Ordinarily it is the duty of the district attorney to prosecute and defend all actions, civil or criminal, in the courts of his county in which the state or county is interested or a party.[2] On the other hand, no statute gives the attorney general power to appear and prosecute or defend actions generally except in the supreme court.[3] In this state the attorney general is devoid of common-law powers and duties.[4] However, sec. 14.53(1), Stats., provides that the attorney general shall “when requested by the governor or either branch of the legislature, appear for the state and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people thereof may be in anywise interested.”

The attorney general in the instant case acted as counsel pursuant to a request by Governor Knowles embodied in his letter to Bronson La Follette. Sec. 14.12, Stats.,

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in his letter to Bronson La Follette. Sec. 14.12, Stats., provides that:

“The governor, whenever in his opinion the rights, interests or property of the state have been or are liable to be injuriously affected, may require the attorney general to institute and prosecute any proper action or proceeding for the redress or prevention thereof; and whenever he receives notice of any action or proceeding between other parties by which the rights, interests or property of the state are liable to be injuriously affected, he shall inform the attorney general thereof and require him to take such steps as may be necessary to protect such rights, interests, or property.”

The rights and interests of the state obviously would be injuriously affected if the writ of prohibition in this case became absolute. Therefore, the governor’s request is proper; so, too, is the attorney general’s appearance in this civil action.

Recommencement.
Appellant argues that the state cannot recommence this criminal action. The argument is without merit. The recent case of Tell v. Wolke[5] is directly on point and controls the instant case. Tell discussed sec. 955.20, Stats., which provides:

“Second examination. If a preliminary examination has been had and the defendant has been discharged for want of evidence, and the district attorney afterwards discovers evidence sufficient, in his judgment, to convict the defendant, he may cause another complaint to be made, and thereupon further proceedings shall be had.”[6]

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Tell held that sec. 955.20, Stats., was directory only and related solely to the duty of district attorneys and did not provide an accused with a defense or operate as a bar to subsequent proceedings involving the same offense.[7]
The court stated:

“Nor do we think the intent of sec. 955.20, Stats., is to give a discharge on a preliminary hearing the effect of an acquittal after a trial on the merits . . . . The preliminary hearing is not a trial in the sense the accused has been put in jeopardy nor is the discharge from custody upon the failure of proof at a preliminary examinatio res judicata on the district attorney any more than a bind over for trial is res judicata of the defendant’s guilt. Montgomery v. State (1906), 128 Wis. 183, 107 N.W. 14. The doctrine of res judicata is not applicable to preliminary examinations.”[8]

In dismissing the appeal from Judge CLARK’S dismissal order, entered after the bind over of this defendant following the preliminary examination on the first complaint issued in this matter, this court recognized the principles set forth in Tell, when it stated:

“The respondent [appellant here] having conceded in his brief that the state may re-issue the warrants, the court concluded that jeopardy has not attached and that the order appealed from is not a final order. It follows that the order is not appealable, and therefore the motion to dismiss the appeal is granted, without costs.”

To try to distinguish Tell from the instant case because the interval between arrests in the Tell Case was one week as compared to several years in this matter is inapposite. To so distinguish would be to punish the state for attempting to protect its interests by appeal.

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The actual interval between the dismissal of the appeal and the reissuance was approximately five months, an interval that cannot be characterized as unreasonable.

Appellant argues that the evidence to be adduced during the second preliminary will be the same as that introduced during the first. Even if this is true, and for purposes of this appeal no such determination need be made, the court in Tell explains why this contention has no merit:

“An additional reason exists why the language of sec. 955.20, Stats., cannot be construed as prohibiting the making of a second complaint and holding an examination upon the same evidence. The state has no appeal from errors of law committed by a magistrate upon preliminary examination and the discharge on a preliminary would operate as an unchallengeable acquittal. Public policy does not allow such a result after a trial on the merits. Sec. 958.12(1) (d) allows the state with the consent of the trial court to appeal judgments of acquittal to review errors of law. The only way an error of law committed on the preliminary examination prejudicial to the state may be challenged or corrected is by a preliminary examination on a second complaint. We construe sec. 955.20 as being only directory on the district attorney and not as prohibiting the district attorney from causing a second complaint to be issued upon the same evidence for the same offense. His judgment in doing so cannot be reviewed.” (Emphasis added.)[9]

As recognized in Tell, the repeated arrest of a person on the same charge may reach the point of harassment. When this point is reached, the doctrine of fair play can be invoked to curtail the prosecutor’s actions. In the instant case the state’s prosecution of this defendant has not reached the harassment stage. The state is entitled to its day in the supreme court on any errors of law that may have been committed by the trial court. Permitting a second complaint, as in the instant case, is the only way it can have that day. The defendant here argues one

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way when he urges that Judge CLARK’S dismissal order after the bind over and prior to arraignment is not appealable; he argues the other way when he says the state cannot start afresh and recommence the criminal action. In so arguing, we think the appellant has too much of a legal sweet tooth. He cannot have his cake and eat it too.

By the Court. — Order affirmed.