prior discharge after jireliminary hearing is not res judicata as to subsequent prosecution on same charge
How later courts described this case
- prior discharge after jireliminary hearing is not res judicata as to subsequent prosecution on same charge
- prior discharge after preliminary hearing is not res judicata as to subsequent prosecution on same charge
Written by the judges who cited it.
Later courts went against this
Overruled by State v. Antes, 74 Wis. 2d 317 (1976)
21 Wis.2d 613, 124 N.W.2d 655, 659 (1963), overruled, in part by State v. Antes, 74 Wis.2d 317, 246 N.W.2d 671 (1976)).
The opinion
DieteRich, J.
(dissenting). I cannot agree with the majority’s conclusion that sec. 955.20, Stats., does not prohibit the prosecution from issuing a second complaint upon the same evidence where the district attorney had the *621 witness in question under subpoena and present at the first preliminary hearing, and where he obviously knew the content of the witness’ testimony, but instead chose to rest his case without calling the witness to the stand. Secs. 954.08 (1) and 954.12 1 provide that the magistrate shall permit the district attorney to examine the witnesses for the state in relation to the crime charged, and that if it appears to the magistrate upon the examination that no crime has been committed or that there was no probable cause for charging the defendant with a crime, he shall be discharged. The situation presented is simply one where the district attorney entered upon the preliminary examination with what he considered to be sufficient evidence, but failed to use it.
I am of the opinion that the testimony of the witness in such a situation does not constitute after-discovered evidence upon which a second complaint may be issued, and a second preliminary examination had, pursuant to sec. 955.20, Stats. Where the district attorney fails to call such a witness and chooses instead to rest his case, and the defendant is subsequently discharged, I fail to see how the statute, which requires newly discovered evidence, permits him to begin all over again upon the same evidence which was available to him, but not used, at the first preliminary examination.
Sec. 954.08. “. . . As soon as may be, the magistrate shall swear and examine or permit the district attorney to examine the witnesses for the state, in the presence of the defendant, in relation to the crime charged in the complaint; and they may be cross-examined. Then the witnesses for the defendant shall be sworn and examined and may be cross-examined. The defendant may be assisted by counsel.”
Sec. 954.12. “. . . If it appears to the magistrate upon the examination that no crime has been committed or that there was no probable cause for charging the defendant with a crime, he shall be discharged. If the magistrate certifies in his docket that the complaint was malicious and without probable cause, he shall enter judgment against the complainant and in favor of. the county for the taxable costs of the proceeding, and thereafter proceedings shall be as provided in s. 960.22.”