Goyer v. State

131 N.W.2d 888, 26 Wis. 2d 244, 1965 Wisc. LEXIS 978

• Court: Wisconsin Supreme Court
• Decided: January 5, 1965
• Status: Published

Opinions

Wilkie, J.

The principal issue on this appeal is whether it was violative of due process to try Goyer by way of an information rather than on presentment or indictment of a grand jury as required by the Fifth amendment of the United States constitution.¹

Goyer waived any objection in this regard by failing to raise it before his trial.²

Assuming there was no waiver, nevertheless the law is well settled that the presentment or indictment requirements of the Fifth amendment are not made applicable to the states by the Fourteenth amendment.³

Counsel for defendant concedes that this is so but asks this court to overrule the Rowan Case ⁴ and hold that the Fourteenth amendment makes those provisions of the Fifth amendment apply in Wisconsin so as to require that criminal prosecutions proceed by way of a presentment or indictment of a grand jury and not by way of an information. We are convinced that the requirements of due process do not require or warrant such a change in the law. In fact, we are persuaded that the essentials of due process are well served by the present procedure, approved in Rowan.

The fundamental rationale of the ruling that due process does not require prosecution only by presentment or indictment growing out of a grand jury proceeding is well stated in Rowan:

“And the words ‘due process of law,’ in this amendment, do not mean and have not the effect to limit the powers of the state governments to prosecutions for crimes by indictments, but these words do mean law in its regular course of administration according to the prescribed forms and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change from time to time with the advancement of legal science and the progress of society, and if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution as it now stands, and nothing in the 14th amendment to the constitution of the United States, which prevents them from doing so.” ⁵

In Kennedy, the supreme court of errors of Connecticut stated:

“The fact that throughout the more than three centuries this commonwealth has existed grand jury indictments have been required only for the most serious offenses is the strongest evidence that the people of this state do not believe that such indictments are necessary for their protection in other cases.” ⁶

and

"We can find neither in the history of criminal procedure in this state nor in the attitude of the people towards it any basis for a conclusion that grand jury indictments ought to be a necessary foundation upon which all prosecutions for infamous crimes should rest.” 7

The United States supreme court held in Hurtado:

“Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is not due process of law.” ⁸

Also in Lem JVoon:

“But since, as this court has so often held, the ‘due process of law’ clause does not require the State to adopt the institution and procedure of a grand jury, we are unable to see upon what theory it can be held that an examination, or the opportunity for one, prior to the formal accusation by the district attorney, is obligatory upon the States.” ⁹

This basic rationale remains unaffected by recent decisions of the United States supreme court holding that certain other Bill of Rights provisions are binding upon the several states in view of the due-process requirement of the Fourteenth amendment.¹⁰ The essence of the due-process concept in considering whether the Fourteenth amendment requires that certain provisions of the Bill of Rights apply to the states is that due process means “ ‘a fundamental right, essential to a fair trial.’ ” ¹¹

There is nothing fundamentally unfair about the procedure that permits criminal prosecution by way of information especially as contrasted with a prosecution flowing from a grand jury proceeding. That a prosecution by way of information has many features of fairness also present in the grand jury procedure, was pointed out by this court in Thies v. State, where it was stated:

“The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, ánd oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.” ¹²

There is nothing inherently fairer, in the quest to provide defendant with a fair trial, about a procedure allowing prosecution by indictment by grand jury rather than by way of an information.

The remaining issue is whether it was error to impose a sentence for conviction of a single crime which runs concurrently in part and consecutively in part. The judge had no authority to split the sentence.¹³ The sentence is part of the judgment. In view of the trial court’s error sentence should not be split but should be declared to be for a ten-year concurrent term.

By the Court. — Judgment modified to provide that sentence is for a ten-year concurrent term and, as so modified, affirmed.

1 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, „ . ”

2 Sec. 955.09 (3), Stats.: “Defenses and objections based on defects in the institution of the proceedings, . . . must be raised before trial by motion or be deemed waived. . . .”

3 Thies v. State (1922), 178 Wis. 98, 189 N. W. 539; Rowan v. State (1872), 30 Wis. 129; Kennedy v. Walker (1948), 135 Conn. 262, 63 Atl. (2d) 589, affirmed, 337 U. S. 901, 69 Sup. Ct. 1047, 93 L. Ed. 1715, rehearing denied, 337 U. S. 934, 69 Sup. Ct. 1491, 93 L. Ed. 1740; Lem Woon v. Oregon (1913), 229 U. S. 586, 33 Sup. Ct. 783, 57 L. Ed. 1340; Hurtado v. California (1884), 110 U. S. 516, 4 Sup. Ct. 111, 28 L. Ed. 232.

4 Supra, footnote 3.

5 Supra, footnote 3, at page 149.

6 Supra, footnote 3, at page 270.

7 Kennedy v. Walker, supra, footnote 3, at page 271.

8 Supra, footnote 3 at page 538. See reference to Hurtado rule in footnote 2 of majority opinion, Malloy v. Hogan (1964), 378 U. S. 1, 4, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653.

9 Supra, footnote 3, at page 590.

10 Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977; Malloy v. Hogan (1964), 378 U. S. 1, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653; Massiah v. United States (1964), 377 U. S. 201, 84 Sup. Ct. 1199, 12 L. Ed. (2d) 246; Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799; Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.

11 Gideon v. Wainwright, supra, footnote 10, at page 340.

12 Supra, footnote 3, at page 103.

13 Sec. 959.07, Stats. . . The court may impose as many sentences as there are convictions and may provide that any such sentence shall commence at the expiration of any other sentence; and if ;the defendant is then serving a sentence, the present sentence may provide that it shall commence at the expiration of the previous sentence.”