# State Ex Rel. Kowaleski v. District Court of Milwaukee County > Wisconsin Supreme Court · February 15, 1949 · 254 Wis. 363 URL: https://www.frixlaw.com/law-library/cases/4010742 ## Case - **Full name:** State Ex Rel. Kowaleski, Appellant, vs. District Court of Milwaukee County and Another, Respondents - **Court:** Wisconsin Supreme Court - **Decided:** February 15, 1949 - **Citations:** 254 Wis. 363; 36 N.W.2d 419; 1949 Wisc. LEXIS 258 - **Precedential status:** Published - **Opinion:** Dissent by Hughes - **Judges:** Martin, Hughes - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by State Ex Rel. Jackson v. Coffey, 18 Wis. 2d 529 (1963). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4010742 ## How later opinions describe it (automated extraction) - holding that a John Doe secrecy order exists, in part, to protect the witnesses ## Opinion text Hughes, J. (dissenting). I am compelled to disagree with the court. The question simply is whether the magistrate, having issued a warrant for and caused the arrest of the defendant John Henry Kowaleski for acceptance of a specific bribe, can thereafter in a new proceeding of State of Wisconsin v. John Henry Kowaleski subpoena witnesses and conduct a John Doe hearing. The determination of this question requires a construction of sec. 361.02 (1), Stats., which provides: “Upon complaint made to any such magistrate that a criminal offense has been committed, he shall examine, on oath, the complainant and any witness produced by him, and shall reduce the complaint to writing and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed the magistrate shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before the said magistrate, or before some other magistrate of the county, to be dealt with according to law; and in the same warrant may require the *374 officer to summon such witnesses as shall be therein named to appear and give evidence on the examination.” In State ex rel. Long v. Keyes (1889), 75 Wis. 288, 299 , 44 N. W. 13 , this court said: “I have extended this opinion too long, in view of the fact that the question involving the proper construction of said statute is not difficult, but the question is certainly a very important one.” The importance of the question, the far-reaching effects of the majority opinion, and the evils which I believe now have the approval of this court, impel me to set forth my reasons for dissent. In the case of State ex rel. Long v. Keyes, supra, complaint had been made to the municipal court for Dane county that Alonzo F. Kellogg, George H. Paul, Charles H. Maxon, and divers other persons whose names were unknown to the complainant had on a designated occasion riotously and tumultuously assaulted one Riley, injuring him and terrifying him and others lawfully in the community. The judge of the municipal court, sitting as a magistrate, held hearings and subpoenaed witnesses whose names were suggested by the complaining witness and the testimony of other witnesses. The hearings were adjourned from time to time, and the relator Long was called at one of the sessions and sworn to give testimony. He refused upon many grounds, the chief of which was that the magistrate had no power or authority to compel him to testify. The court held that the magistrate was acting within his power. It must be noted that the proceeding there was as contemplated by the statute for the purpose of determining whether others besides the named defendants had participated in the riot and who they were. No warrant had issued for the arrest of anyone. *375 This court there considered the purposes of the statute (p. 294): “When this statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so. This was found to be a ver)? unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them. The law delights as much in the protection of the innocent as in the punishment of the guilty. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion.” At page 298 the court said: “The conclusion, therefore, is that the respondent, as judge of said court, acted in said matter strictly within his powers and jurisdiction and according to the statute, and has yet the power and jurisdiction to continue said examination until it shall appear that the accused, and any other person or persons, are probably guilty of said offense.” The implication is plain that when said facts appear to the magistrate his duty is to issue the proper warrant. Certainly where he issues a warrant he cannot continue a hearing as an aid to the district attorney in preparing the prosecution. The language of the court was so interpreted in XXIX Op. Atty. Gen. 401 (1940) : “The proper procedure is for the informant to complain orally to the magistrate that an offense has been committed but that he does not know the identity of the offender. The magistrate then has jurisdiction to subpoena any number of witnesses necessary to be examined in order to learn the identity of the person guilty and may continue the hearing from time to time. No warrant should be issued during the course of these proceedings, since there is no basis for the issuing of the warrant until the identity of the offender is known. Issuing the warrant for the apprehension of John Doe and then having the sheriff’s return on such warrant stating that *376 he cannot find the accused is not only an idle ceremony but is contrary to the intent of the statute. “After the warrant has been issued, the magistrate has jurisdiction only to proceed in a summary manner.” The district attorney had the duty of proceeding in one of two ways, either against the named defendant, or under the John Doe statute. Additional crimes of bribery, if any were committed by the defendant, were subject to proof at the preliminary examination in the case in which the defendant had already been arrested. He and his counsel certainly have the right to be present and cross-examine witnesses if produced at the preliminary examination. This right cannot be defeated by starting a second proceeding against the defendant and labeling it a John Doe hearing. If a bona fide John Doe proceeding were necessary to investigate other crimes of bribery and the defendant were not named as a party, but evidence came out against him incidental to such investigation, he would have no cause for complaint. The constitutional guaranties that the accused shall enjoy the right to a speedy and public trial, to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, are seriously jeopardized by this proceeding. Of course, it is simple to dispose of all constitutional objections if one starts with the presumption that the accused is guilty and that the enforcement officers must have their tasks made easy for them. It is to be hoped that even our participation in European trials has not caused us to forget that our constitution extends a protective presumption of innocence to the accused which continues with him not only to the time of his arrest but throughout the trial and until overcome by all of the evidence adduced upon the trial. I am of the opinion that from the day a warrant is issued *377 and served upon any accused he is a necessary party to the proceeding and that any action which attempts to circumvent his right to appear is unconstitutional. This statute not only does not require such construction, but does not permit it. In denying the writ of prohibition sought in State ex rel. Long v. Keyes, supra, the court said (p. 299) : “We cannot assume that the said judge will proceed longer in such examination or make it more expensive than necessary. . . . Because the said judge has not proceeded in said examination outside or beyond his powers and jurisdiction, and has not threatened to do so, the motion to quash the writ is sustained.” But the magistrate here exceeded his jurisdiction by conducting the examination after the issuance of the warrant. I am therefore of the opinion that the writ of prohibition sought by the relator should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4010742. Public record. Not legal advice.