Opinion
No. State 86-88.
Argued: November 27, 1968.
Decided: December 20, 1968.
APPEAL from a judgment of the circuit court for Rock county: ERNST JOHN WATTS, Circuit Judge of the Twenty-sixth Circuit, Presiding. Affirmed.
For the appellant the cause was argued by Jeffrey B. Bartell, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Robert J. Ruth, district attorney of Rock county.
For the respondents there was a brief by Bass, Goldstein Moglowsky, attorneys, and Bernard Goldstein of counsel, all of Milwaukee, and oral argument by Bernard Goldstein.
A complaint against each of the defendants, charging them with a violation of sec. 945.02 (3), Stats., was sworn to by the chief deputy sheriff of Rock county. It was alleged that as a part of a sales method, the defendant company solicited the names of other potentially interested customers from a purchasing customer, and if such other persons purchased a fire alarm system the original customer received a cash commission or bonus. The defendants Radcliffe and Siegel were salesman and manager of V-Systems.
On the basis of the complaint, a summons, dated April 26, 1967, was issued by the Rock county district attorney to each of the defendants. The three cases come before this court, each on the second amended complaint and the second amended summons dated October 25, 1967. In each case the second amended summons was issued by a magistrate (the first amended summons in each case was issued by the district attorney). The defendants appeared in circuit court, with counsel, in response to such summons and moved to dismiss the second amended complaint. The trial court granted the motion on the ground that the complaints did not "state essential facts constituting the offense charged" from which a neutral and detached magistrate could make "an independent determination of probable cause that a crime has been committed and that the defendant is probably guilty . . . ."
Summons to this court predated the 1967 amendment of sec. 954.02 (3), Stats., requiring designation of county judge in summons.
The state appeals from this judgment.
The sole question presented on this appeal is whether a complaint which is the basis for the issuance of a summons by a magistrate need not meet the "probable cause" standard required for the issuance of an arrest warrant.
The state concedes that the second amended complaint falls short of the standard requiring a complaint to contain sufficient facts to permit an independent determination of probable cause by a magistrate and thus would not support the issuance of an arrest warrant. But the state argues that a complaint which is the basis for the issuance of a summons, as distinguished from an arrest warrant, need not meet the same "probable cause" standard.
Giordenello v. United States (1958), 357 U.S. 480, 78 Sup. Ct. 1245, 2 L.Ed.2d 1503; Jaben v. United States (1965), 381 U.S. 214, 85 Sup. Ct. 1365, 14 L.Ed.2d 345; State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391.
This assertion is contrary to the plain and unambiguous terms of sec. 954.02 (2), Stats., which provides in part:
"(2) If it appears from the complaint that there is probable cause to believe that a crime has been committed and that the accused committed it, the magistrate shall issue a warrant or summons."
A complaint which is the basis for the issuance of a summons by a district attorney, pursuant to sec. 954.02 (3), Stats., must also meet the probable cause standard if it is to withstand timely attack by the defendant when he appears before the county judge to whom the summons is returnable.
State v. Greene (1968), 40 Wis.2d 88, 161 N.W.2d 239; State ex rel. White v. Simpson, supra, footnote 2.
Sec. 954.02 (3), Stats., provides that a summons issued by a district attorney must be "returnable before a named judge of the county court," and also that the complaint upon which the summons is issued must be delivered to the clerk of court for that county. If the defendant does not appear in response to the summons, this subsection provides that "a warrant may be applied for pursuant to subs. (1) and (2)."
The clear purpose of this subsection is to provide that the county court, on timely motion by the defendant, will pass on the sufficiency of probable cause in the complaint before the accused is subjected to further criminal proceedings. If the defendant does not appear in response to the summons, the statute provides that the magistrate may issue a warrant under "subs. (1) and (2)." To do so would require that the complaint meet probable cause standards. There is nothing in the statute to indicate that the legislature contemplated that a new complaint, meeting the probable cause standard, would be filed if person did not appear in response to the summons based on a complaint not meeting such a standard.
By the Court. — Judgment affirmed.