Mundon v. State

220 N.W. 650, 196 Wis. 469, 1928 Wisc. LEXIS 286

• Court: Wisconsin Supreme Court
• Decided: July 17, 1928
• Status: Published

Opinion

Rosenberry, J.

The defendant alleged as error the failure of the court to suppress the evidence procured by means of a search warrant issued by a justice of the peace. The complaint for the warrant is as follows:

“Walter Vesperman, being duly sworn, on oath says that he is informed, has good reason to believe, and does believe, that on the 6th day of August, in the year 1927, at said county, George alias Pete Mundon did transport and have in his possession privately distilled intoxicating liquor,” etc.

No record was made of the examination of the person who signed the complaint. At the trial there was an attempt to ■supplement the record. Upon this branch of the case it is ruled by Glodowski v. State (decided June 18, 1928), ante, p. 265, 220 N. W. 227.

It is clear that in sentencing the defendant the court sentenced him for three offenses and gave him three distinct sentences. This matter was treated at considerable length in Watson v. State, 190 Wis. 245, 208 N. W. 897, and it is there held that the sole office of sec. 359.14, Stats., is to increase the penalty for the offense of which the defendant is convicted, and the fact that he is guilty of a second offense does not make him guilty under sec. 359.14 of a separate offense for which he may be sentenced.

Inasmuch as some evidence was obtained without the aid of the search warrant, it is considered that the cause should be reversed and remanded for a new trial unless in the opinion of the district attorney evidence independent of the search warrant would not justify such a trial.

By the Court. — The judgment of the circuit court for Grant county is reversed, and the cause remanded for further proceedings as indicated in the opinion.