Watke v. State

163 N.W. 258, 166 Wis. 41, 1917 Wisc. LEXIS 165

• Court: Wisconsin Supreme Court
• Decided: June 12, 1917
• Status: Published

Opinion

SiebecKjse, J.

The defendant contends that the proceedings, beginning with the issuance of a warrant upon the complaint of Neenah Watke, his former wife, under sec. 4587c, Stats., his arrest, his trial and conviction in the municipal court, were without jurisdiction and contrary to the law upon the several grounds hereinafter stated:

(1) It is claimed that the proceeding had before A. II. Goss as the judge of the municipal court for a preliminary examination and binding him over for trial in the municipal court was without jurisdiction. This contention is based on the case of State v. Solomon, 158 Wis. 146, 147 N. W. 640, 148 N. W. 1095, holding that the statutory scheme of preliminary examination upon complaints for criminal offenses contemplates that such examination is to be held by some magistrate other than the court wherein the offender is triable. It is asserted that under this rule the defendant could not legally be subjected to a preliminary examination upon the criminal complaint made against him by the judge of the municipal court and be by him bound over for trial in the municipal court. The municipal court of the city of Oshkosh and county of Winnebago was established by ch. 24, Laws 1895. The act establishes the court as a court of record, having a clerk, and provided for a seal. The act provides (sec. 1) :

“Said court may exercise powers and jurisdiction equal and concurrent with the circuit court of Winnebago county in all cases of crimes and misdemeanors arising in said county, except murder, and except where the person accused shall demand, in writing, as- herein provided, to be tried in said circuit court. .’ . . No justice of the peace or court commissioner within said city, shall exercise any jurisdiction in criminal or bastardy cases, but all sncli jurisdiction is vested in the judge of said court; and all examinations, recognizances and commitments from said judge, and tbe other justices of the peace of said county, in criminal cases, . . . shall be certified to and returned to said municipal court . . . instead of said circuit court.”

These provisions clearly make a distinction between the general jurisdiction conferred on the municipal court as a court of record and the authority conferred on the judge of such municipal court as a magistrate to exercise the powers of a justice of the peace within the city. This distinction must be kept in view in applying the law to the case before us. The making of the complaint against the defendant by his former wife to the judge of such municipal court, the issuance of the warrant therein for his' arrest, the proceedings had upon the return of the warrant, and the preliminary examination of the defendant and holding of him for trial before the municipal court, were proceedings before the judge of such court within the jurisdiction conferred on him as a justice of the peace within the city of Oshkosh. This statute authorized him to exercise such jurisdiction and specifically conferred on him the power to certify and return the examinations and commitments to the municipal court. Upon the return so made to the municipal court such court had the power to proceed with the trial of the ease within its general jurisdiction as a court of record pursuant to the general provisions of the law in force in circuit courts in actions and proceedings therein in criminal cases. The practice of conferring such powers and jurisdiction separately on municipal courts and the judges thereof has been adopted in various acts establishing municipal courts throughout the state which have existed for long periods of time and provide for a proper and efficient way of exerting such powers. Raynor v. State, 62 Wis. 289, 22 N. W. 430; State ex rel. Hamilton v. Municipal Court, 89 Wis. 358, 61 N. W. 1100; Robertson v. Parker, 99 Wis. 652, 75 N. W. 423. The proceeding before the judge of the municipal court was proper and within the powers vested in him as such judge, and the proceedings upon the trial of the defendant in the municipal court were correctly held to be within the general jurisdiction of such a court as a court of record.

(2) It is claimed that the court erred in overruling the defendant’s contention that the municipal court had no jurisdiction to try the defendant for the alleged offense because the circuit court for Winnebago county had oh May 10, 1916, entered a judgment divorcing defendant from his former wife, the complaining witness in this prosecution, whereby the bonds of matrimony were dissolved and the custody of the three infant children was awarded to the wife and the recovery by her of $20 per month from May 6, 1916, payable monthly thereafter as alimony and for the support of the infant children, was decreed. It is asserted that this judgment of divorce was such a modification of the defendant’s legal obligation to support his minor children as to free him from the penalties prescribed by sec. 4587c, Stats. This claim cannot be sustained. The terms of the divorce judgment do not modify the defendant’s legal obligation to support his children, but expressly provide that he shall do so by paying to his former wife the amount awarded. This case is entirely different from the case of People ex rel. Comm'rs v. Cullen, 153 N. Y. 629, 47 N. E. 894, where the husband had by decree of the court been entirely absolved from the legal obligation to support his wife. The fact that the children’s custody was awarded to the mother by the divorce judgment does not operate to modify this obligation, nor is any court having jurisdiction to enforce the penalties provided by sec. 4587c, Stats., deprived of the power to enforce them against the defendant by the divorce proceedings in the circuit court. We discover no such conflict between the jurisdiction of the two courts as is claimed by the defendant in exerting their powers to administer the laws governing the domestic relations involved in the divorce proceedings and the legal obligations involved in this action. The duties of the defendant can be enforced separately by the different courts having jurisdiction thereof and he be fully protected in all his legal rights. People v. Schlott, 162 Cal. 347, 122 Pac. 846; In re McMullen, 19 Cal. App. 481, 126 Pac. 368; Spade v. State, 44 Ind. App. 529, 89 N. E. 604.

(3) It is urged that the court erred in receiving evidence of the defendant’s neglect to provide for his minor children before and after the time charged in the complaint and information. True, the information charges that the defendant on May 23, 1916, “and for some time prior thereto,” did wilfully neglect and refuse to provide for the support of his minor children. The trial court instructed the jury:

“If you are satisfied beyond a reasonable doubt that the offense set forth in the information was committed at or about the time set forth in the information, the particular date set forth is immaterial.” .

This instruction was given in connection with one stating', that the offense charged was a continuing one, and therefore evidence of the offense before and after the time charged was admissible to show whether or not the offense charged was committed at or about the time charged. These instructions correctly stated the law as approved in Adams v. State, 164 Wis. 223, 159 N. W. 726; Hopkins v. State, 126 Wis. 104, 105 N. W. 223.

The evidence tended to show that the defendant failed and neglected to provide for his minor children prior to May 6, 1916, the date indicated in the judgment of the divorce action providing for their support thereafter, and that he contributed nothing for their support thereafter up to the time of the trial. In the light of this state of the evidence the court properly submitted the case on the point specified in the above quoted instruction. This evidence of violation of the statutes before and after the decree was proper under the information within the rule of the Adams and Hopkins Cases, supra. We find no reversible error in the record and the judgment must stand.

By the Court. — The judgment is affirmed.