The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1908-03-26
Decision ID Montgomery and Jack
son Cases Not TO Affect
Other Proceedings
BEL0EN EXPLAINS THE LAW
Gives His Idea Of the "John Doe'
Proceeding and the Manner in
Which It Should Be Con-
Quoted by the Officials
(From Thursdays Daily. J

N IOA4A A1AOAouoJ p DoAAJ =
The decision of Judge Belden in re-
gard to "John Doe proceedings and
investigations handed down in the case
of State of Wisconsin VS.. Shelley H.
Montgomery has caused some comment
among attorneys in Kenosha as it is
thought that it will have some bearing
On the cases for conspiracy which are
now being investigated by the district
attorney in connection with the recent
labor troubles at the Badger Brass
Works. No evidence has been taken in
this investigation since last Saturday,
but it is understood that the work will
be taken up again just as soon as the
district attorney gets rid of some Of the
criminal cases now pending before the
Circuit Court which are on the present
calendar. It is claimed that the John
Doe proceedings in the conspiracy
case are entirely different from the one
that has been declared unlawful by
Judge Belden on account Of the fact
that no warrant was issued before the
Investigation and that the investiga-
tion is being held strictly in accordance
to law. The court held in his decision
that the legality Of the other proceed
ings was called into question because a
John Doe' warrant had been issued
| by the justice previous to the taking
of any testimony to get the facts on
which to base Il complaint and warrant.
In the present investigation no warrant
has been issued and the witnesses are
being examined by Court Commissioners
| Hastings under a complaint made by
| the district attorney in which there
! are number of defendants mentioned
under fictitious names. Attorney Baker
is looking into the matter and if he be-
Ieves that there is any cause to think
that the court would throw out the pro-
ceedings he will take a new start. and
haze The witnesses summoned for
second hearing.
| In his decision on the Jackson and
Montgomery case, the Court has given
an interesting Interpretation of the
law in regard 20 John Doe'' proceed
ings. He says in part:
The authority Of the magistrate to
summon and examine witnesses, other
/ and in addition to the complainant, in
order to satisfy himself that crime
has been committed, and by whom, is
iundoubted. But it is quite as clear
that such procedure, to be lawful, must
be had before the issuance Of warrant
When the magistrate issues war
rant he exercises and exhausts all the
discretion and authority granted him
by section 4776. He thereby puts that
statute and it's authority behind him
and the proceeding passes to the realm
of preliminary examinations after ar
rest.
The magistrate has no authority to
issue John Doe warrant, or a warrant
IN blank, directed against no designated
person or wherein no person is attempt
ed~to be described. Tt is essential that
/ when the warrant is issued the Magis-
! trate must have some person in mind
as the accused and some description of
such person, however meager, must be
undertaken in the warrant The is
suance Of such warrant as was is
sued herein by Justice McCarron places
it within the judgment and discretion
Eof the constable or other officer to
whom the warrant is entrusted TO ascer-
tain and to determine who shall be ar
rested and who is "the person accus-
ed. This cannot be done and such
act is wholly Intellectual anG void De
ltermining whether a crime has been
committed and who shall be charged
Herewith are judicial functions and
cannot be delegated to or exercised by
the constable or other officer. The
statute Under consideration was enacted
to prevent that very thing and for the
purpose Of protecting citizens against
the dangers attending the practice in
/ dulged in here. The magistrate must
/ not issue his warrant until the evidence
before him points to some person.
The magistrate may examine wit
nesses without number for the purpose
OF determining whether an offense has
been committed and against whom the
warrant shall be directed Such in
curry is limited neither as to time nor
number Of witnesses. When the mag
istrate has exercised his discretion and
authority by issuing his warrant, he
| has exercised and exhausted all his
power under section. 4776.
/ 1t follows that any examination there
| after, for the purpose of determining
who the accused person is, is who'll
~ unauthorized by law and is void,