Opinion
September 4, 1962 —
September 13, 1962.
MOTION for leave to commence habeas corpus proceeding in this court. Denied.
For the petitioner there was a brief and oral argument by Jack McManus of Madison.
For the respondents the cause was argued by William A. Platz, assistant attorney general, and Donald R. McCallum, deputy district attorney of Dane county, with whom on the brief were John W. Reynolds, attorney general, and William D. Byrne, district attorney.
Relator's petition alleges: On April 16, 1962, relator was charged with violating secs. 943.32(1)(a) and 940.22, Wis. Stats. On April 19, 1962, an attorney was appointed for relator and three codefendants, and relator objected to having the same counsel represent him as did these other defendants and made a request for separate counsel before commencement of the preliminary hearing. The preliminary hearing was held April 25, 1962, before Honorable WILLIAM L. BUENZLI, judge of branch No. 2 of the county court of Dane county, at the conclusion of which relator was bound over for trial to the circuit court, and presently is confined to the Dane county jail. Thereafter, relator moved the circuit court to dismiss the action on the ground that insufficient evidence has been produced by the state at the preliminary hearing to warrant relator's being ordered bound over for trial., which motion was denied by order entered June 25, 1962, by Honorable EDWIN M. WILKIE, judge of branch No. 2 of the circuit court for Dane county. On July 9, 1962, the circuit court appointed separate counsel for relator.
Two grounds are alleged in the petition as a basis for this court's assuming jurisdiction in habeas corpus, viz.,
(1) Insufficiency of the evidence adduced at the preliminary hearing.
(2) Refusal to appoint separate counsel to represent relator at the preliminary hearing.
Relator submitted to the jurisdiction of the circuit court by making his motion to dismiss in that court. Having done so, he can no longer seek habeas corpus to test the sufficiency of the evidence at the preliminary examination. The order denying such motion is a nonappealable order. State v. Leikness (August Term, 1960, State No. 33, decided March 7, 1961), unreported.
The issue raised with respect to the failure to provide relator with separate counsel to represent him at the preliminary hearing is without merit. There is no constitutional right to be provided with counsel at a preliminary hearing arising under the United States constitution. Odell v. Burke (7th Cir. 1960), 281 F.2d 782, certiorari denied, 364 U.S. 875, 81 Sup. Ct. 119, 5 L.Ed.2d 96. Neither does such a right exist under sec. 7, art. I, Wis. Const., because a preliminary hearing is not a criminal prosecution within the meaning of this constitutional provision. Hawk v. State (1949), 151 Neb. 717, 39 N.W.2d 561, 567; cf. State ex rel. Kennon v. Hanley (1946), 249 Wis. 399, 401, 24 N.W.2d 683. Sec. 957.26, Stats., does not require that relator be provided with counsel prior to arraignment, absent any attempt to take depositions. However, while not constitutionally necessary, the practice of appointing counsel prior to the preliminary hearing is to be encouraged.
Therefore, it is ordered that leave to maintain the instant proceeding in this court by relator is denied.
WILKIE, J., took no part.