Wieden v. State

MaRShall, T. The contention on behalf of plaintiff in error, that a circuit court commissioner has no jurisdiction to hold a preliminary examination in a case of this sort, and bind the accused over for trial before the circuit court for the-county where the offense is alleged to have been committed, and, therefore, the plea in abatement on that ground was improperly overruled, is ruled in the negative by Faust v. State, 45 Wis. 273; State v. Grunke, 88 Wis. 159, 59 N. W. 452. Jurisdiction to hear all matters, .civil and criminal, within-this state is conferred on circuit courts by the constitution, and could not be taken away as to any such matter except by some unmistakable legislative language to that effect. Jnris-diction as to a particular class of offenses, in the sense of want of judicial power, could not be taken away by merely [588] ■conferring authority on some other tribunal to hear, try, and determine actions to punish for such offenses. So the mere fact that offenses of the character of the one involved here were created, and authority given to administer the law by prosecutions in justice’s court, does not militate against the ■circuit courts exercising their constitutional jurisdiction in such cases, and, incident thereto, examining magistrates, such •as court commissioners, holding preliminary examinations as in other criminal cases. The instruction that, in case a person devotes one room in his building to the use of a hotel or boarding-house office and place for selling liquor and cigars, as is commonly done, it is not sufficient to' comply with sec. 4595, Stats. (1898), to wholly discontinue the shop practice on that day, keeping open only for the office business; but that such compliance requires the actual closing up of the room on that day and use of some other room for an office, or dispensing with the office feature of the hotel or boarding-house business for the day— was erroneous. Neither the letter nor the spirit of the statute goes that far. For that reason the judgment must be reversed and a new trial granted; since the evidence is by no' means conclusive that the room was kept open in its shop feature. On the contrary, the evidence so strongly indicates it was not that it is quite, probable the jury, under proper instructions, might have found the accused not guilty. By the Gowt. — The judgment is reversed, and the cause remañded for a new trial.