1860.

PEGLOW

V.

STATE.

June Term, were made; no opportunity was afforded to ascertain whether he was friendly or hostile to the accused; he was subjected to no cross-examination, and his motives, means of knowledge and situation, could not be inquired into and exposed. For authorities on this question see 1 Russ. on Crimes, 8th American edition, page 43, and notes, and cases there cited.

The judgment of the circuit court is reversed, and a venire de novo awarded.

October 15.

PEGLOW VS. THE STATE.

This Court cannot take notice of proceedings had upon the trial of a criminal action, although the minutes of them, as taken by the clerk or judge, are returned by the clerk as a part of the record. They must be embraced in a bill of exceptions in order to become a part of the record or be entitled to notice.

A statement in the record in these words, "Prisoner in court, and sentenced by the court as follows: That the said F— P— be sentenced to state's prison" &c., purports to be merely a recital or memorandum by the clerk, and cannot be regarded as the record of a judgment of a court.

If a sentence of imprisonment in the state prison omits to direct that the convict be punished by confinement at hard labor, it is erroneous.

In such a case this court remits the record to the court below, with a direction that it proceed to give judgment upon the conviction according to law,

ERROR to the Circuit Court for Manitowoc County. Indictment against Peglow and one Franz, for murder. Plea, not guilty. They had separate trials, and the former was found guilty of murder. There was no bill of exceptions signed or filed. The record entry as to the judgment or sentence pronounced, appears in the opinion of the court.

E. Fox Cook, for plaintiff in error.

J. H. Howe, Attorney General, for the state.

By the Court, DIXON, C. J. The facts disclosed by the record in this case, bring it directly within the principles recognized and established by this court in the case of Benedict vs. The State, decided at the present term. No bill of exceptions was made, signed, or filed, and consequently we

1860.

PEGLOW

V.

STATE.

can take no notice of any of the proceedings which were had June Term, after the arraignment and plea, and before verdict, although the minutes of them taken by the clerk or the presiding judge have been returned as a part of the record. There exists no valid objection either to the form or substance of the indictment, plea and verdict, and the sufficiency of the judgment or sentence which was supposed to have been pronounced, alone remains for our consideration. This is open to the same criticism as that in Benedict's case. In form it more nearly resembles that in which judgments are usually awarded, than the one which was given in his case, but nevertheless it is in this respect defective. It does not purport to be the act and adjudication of the court, but the memorandum or recital of the clerk of what had taken place. It should appear to be the order and judgment of the court itself, and not the sketch or narrative of the clerk. After the title of the action and the day of the month, it is as follows: "Prisoner in court, and sentenced by the court as follows, to-wit: that the said Ferdinand Peglow be sentenced to state's prison, at Waupun, for the term of his natural life, and that ten days of each year be passed in solitary imprisonment." Here the court does not consider, order and adjudge, that the defendant, the said Ferdinand Peglow, be punished by confinement at hard labor in the state prison, for the term of his natural life, and that he be solitarily imprisoned for the period of ten days in each and every year of his said confinement, but the clerk merely says that the prisoner was "sentenced" so and so. "It is the saying of the clerk, and not the consideration of the court." See Wheeler vs. Scott, 3 Wis., 362.

The supposed sentence is likewise fatally deficient in not directing the convict to be confined at hard labor. This essential part of every sentence, where the punishment of imprisonment in the state prison is awarded, is altogether omitted. See section 5, chap. 150, Revised Statutes, 1849, same as section 5, chap. 181, Revised Statutes, 1858.

The judgment which the law authorizes and requires, has never been pronounced, and the case stands as if no attempt to do so had ever been made.

The circuit court is, therefore, directed to proceed to give

1860.

June Term, judgment in this case, in accordance with the requirements of the law. Let the record be remitted to the court below, with directions to that effect.

FRANZ

V.

STATE.

The plaintiff in error, being illegally confined in the state prison, should be delivered into the custody of the sheriff of the proper county, who will retain him until the proper sentence be awarded.

October 15.

FRANZ VS. THE STATE.

This court cannot take notice of proceedings had upon the trial of a criminal action, although the minutes of them, as taken by the clerk or judge, are returned by the clerk as part of the record. They must be embraced in a bill of exceptions in order to become a part of the record, or be entitled to notice. A sentence in these words, "The court sentences the prisoner as follows: that the said FF be punished by confinement in the state prison," &c., though lacking in formality, purports to be the judgment of the court, and is sufficient.

ERROR to the Circuit Court for Manitowoc County. Franz, indicted jointly with Peglow, for murder, as stated in the preceding case, was convicted of manslaughter in the first degree. There was no bill of exceptions made. The only question in this court was as to the validity of the judg ment or sentence, which was in these words "The court sentences the prisoner as follows: That the said Frederick Franz be punished by confinement at hard labor, in the state prison, at Waupun, for the term of ten years, and that ten days of each year, during said term, be passed in solitary imprisonment."

E. Fox Cook, for plaintiff in error.

J. H. IIowe, Attorney General, for the state.

By the Court, DIXON, C. J. With the exception of the form of the sentence which was awarded, the position of this case is precisely the same as that of Peglow vs. The State. At the April term, 1857, of the circuit court for the county of Manitowoc, the plaintiff in error and Peglow were jointly indicted for the murder of one John W. Shultz, alleged to have been committed by them in that county, on the 12th day of

1860.

STATE

V.

PAULEY.

December, 1856. At the October term, 1857, they received June Term, separate trials. Peglow was found guilty as charged in the indictment. The plaintiff was convicted of manslaughter in the first degree, and sentenced by the court to ten years imprisonment in the state prison. There is no bill of exceptions in the case, and we are of opinion that the record shows no error. The only one urged goes merely to the form of the sentence. By a further return, which was made pursuant to an order of the court, it appears that all the substantial requirements of the statute were complied with; and although the judgment is not recorded with as much precision and formality as it might have been, it nevertheless is sufficiently certain, and does not appear as the recital or history of the clerk, but as the act and consideration of the court, by which it was adjudged, "that the said Frederick Franz be punished by confinement at hard labor, in the state prison at Waupun, for the term of ten years, and that ten days of each year, during said term, be passed in solitary imprisonment."

The judgment is therefore affirmed.

THE STATE VS. PAULEY.

The statute which provides that where a mortal wound shall be given in one county, by means whereof death shall ensue in another, the offense may be prosecuted in either county, is not in conflict with that provision of the constitution which secures to a person accused, the right to a trial by a jury of the county or district wherein the offense was committed.

Where a mortal blow is struck in one county, and death ensues therefrom in another, that court, in either county, which first takes cognizance of the offense, has exclusive jurisdiction thereof, and no other court can acquire any jurisdiction of it, except by a change of venue, as provided by statute.

REPORTED from the circuit court for Grant county, for the opinion of this court upon questions of law arising therein.

J. T. Mills, for the state.

J. H. Knowlton, for the defendant.

By the Court, PAINE, J. The defendant was indicted in October 15.

June Term, 1860.

STATE

V.

PAULEY.

Grant county for manslaughter, in killing Moses Clark. The indictment alleged that the mortal wound was given by shooting in Clark county, on the 25th day of February, 1856, and that Clark died of the wound in Grant county, on the 30th day of June following. The circuit court has certified to us several questions of law which arose upon the trial.

The first is, in substance, whether, upon the facts stated in the indictment, the defendant could be lawfully indicted and tried in Grant county. There can be no doubt, and it was conceded on the argument, that the provisions of the statute, now found as sections 7 and 4, chap. 172, R. S., 1858, and which were then in force, were sufficient to authorize such indictment and trial, if those provisions are themselves valid. But the objection is based upon a clause of the constitution, to which, it is said, they are repugnant. That clause is in art. 1, sec. 7, and provides that the accused shall be entitled, "in prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed: which county or district shall have been previously ascertained by law." It was claimed for the defendant that the offense was committed in the county where the mortal blow was given, and that therefore this provision of the constitution secures to him a right to be tried by a jury of that county, and makes it incompetent for the legislature to authorize him to be tried elsewhere.

I am unable to assent to this proposition, for two reasons, which, taken together, are to my mind entirely satisfactory. The first is, that the premises from which it is sought to be derived, are incorrect in point of fact. That is to say, the offense, if committed at all, was not committed' in Clark county. And by that I mean it was not entirely committed there. The offense of manslaughter did not consist of the mere shooting and wounding of the deceased. On the contrary, the causing of his death was the most material element of the offense, and this did not take place there. The blow was struck in one county, and its effect was produced in another. Therefore the offense, which consists both of the giving of the mortal blow, and the production of its effect, cannot,