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197 Wis. 457

Post v. State

Wisconsin Supreme Court

Decided December 4, 1928

Wisconsin Supreme Court · decided 1928-12-04

Key passage — most relied on by later courts

““The general rule, however, has long been recognized that certain constitutional, as well as statutory, rights and privileges are waived unless they are asserted at the proper time and in proper manner. [Citing cases.] If such constitutional safeguards may be waived and the right to thereafter assert them wholly lost, it properly follows that a specific objection which might have been but was not timely and properly asserted before the trial court, may be deemed waived if first asserted, as in the present case, on appeal.””

quoted by 1 later decision, including State v. Hoffman

Relies on Oborn v. State · Hack v. State · Glodowski v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1928-12-04

How this case has been cited

Cited by 3 later decisions — most recently October 1952

3 state decisions

101928193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The following opinion was filed December 4, 1928:

Eschweiler, J.

¶2After the trial and sentence in this case, this court, in Glodowski v. State, 196 Wis. 265, 220 N. W. 227, held a search warrant similar in form to the one presented* here invalid because it appeared from the record that the judicial officer had before him no proper testimony on oath as a basis for its issuance. If the objection there interposed had been submitted to the court below here it would have required a similar ruling. The general rule, however, has long been recognized that certain constitutional, as well as statutory, rights and privileges are waived unless they are asserted at the proper time and in proper manner. It was so held as to arraignment and plea in Hack v. State, 141 Wis. 346, 353, 124 N. W. 492; as to place of trial and procedure, in Oborn v. State, 143 Wis. 249, 259, 126 N. W. 737, an exception, however, being recognized as to jury trials, State v. Smith, 184 Wis. 664, 669, 200 N. W. 638; as to search, in Reiser v. State, 190 Wis. 248, 250, 208 N. W. 797; as to self-incrimination, in State v. Lloyd, 152 Wis. 24, 29-31, 139 N. W. 514; and as to legislator’s privilege from arrest, in State ex rel. Isenring v. Polacheck, 101 Wis. 427, 432, 77 N. W. 708.

¶3If such constitutional safeguards may be waived and the right to thereafter assert them wholly lost, it properly follows that a specific objection which might have been but *460was not timely and properly asserted before the trial court, may be deemed waived if first asserted, as in the present case, on appeal.

¶4We find no force in the other objection here urged and overruled in the court below to the proceeding to trial because of no preliminary examination as to the fourth charge in the information alleging a prior conviction and which first appeared in the record after plaintiff in error had been bound over to the circuit court. Watson v. State, 190 Wis. 245, 248, 208 N. W. 897. We find no grounds, therefore, for disturbing the rulings of the court below.

¶5By the Court. — Judgment affirmed.

¶6A motion for a rehearing was denied, without costs, on February 5, 1929.

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