The following opinion was filed-November 10, 1908:
Dodge, J.(concurring). The power of superintending control conferred on this court -by our constitution is coterminous with the power vested in the 'court of King’s Bench. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 70 N. W. 1081; State ex rel. McGovern v. Williams, ante, p. 1, 116 N. W. 225. It extended to a review of preliminary questions needing to be decided before the court could take into consideration the merits of the controversy. State ex rel. McGovern v. Williams. supra, and English cases cited. The question in the Williams Case was whether there existed *466any indictment so that the court might proceed to consider whether the accused was guilty of the asserted crime. Here the question is whether, conceding the existence of an indictment, the facts therein charged against defendant constitute guilt of the crime asserted. Such question was excluded from the superintending jurisdiction of the court of King’s Bench. Ex parte Lewis, L. R. 21 Q. B. Div. 191; Reg. v. Layman, 7 L. & R. 672; Rex v. Justices, 1 M. & S. 190. The review of such a question belongs within the appellate power and jurisdiction. Original jurisdiction- to try the merits of a criminal charge is vested in other courts and cannot properly be conferred on, or assumed by, this court. Seiler v. State, 112 Wis. 293, 87 N. W. 1072. The merits include both questions of fact and law: Eirst, did the accused perform the acts charged against him; and, if so, secondly, did he thereby commit a crime ? The impossibility of designating the latter question a preliminary one is obvious, for it may be considered at any stage in the trial, as well after verdict in arrest of sentence or on motion to direct verdict as on demurrer or motion to quash before the jury is sworn. The impropriety of decision upon it by this court in the exercise of its superintending control, by mandamus or other writ running to the inferior court, is very obvious, because of its futility. In such a proceeding the accused is not a party, and the expression of views by this court cannot become res adjvdicata in the action against him. Our mandate on such a writ can only command the trial court to perform its judicial duty to proceed to try the case. When that is done the circuit court owes the accused the duty to decide all questions according to his own best judgment, and the question whether the acts charged in the indictment constitute a crime is one that the defendant has a right to demand shall be decided by the circuit court honestly. He may consider our views and repudiate them. This court should never be called on to act where its decision is merely advisory. Reg. *467v. Dayman, sivpra. To entertain a question on the merits and express our views upon it in the hope that the trial court would pay deference to them would be in practical effect to exert an appellate jurisdiction by subterfuge, especially where under the constitution and laws we have none. There both parties have a right that their controversy be finally settled according to the judgment of the lower court. It is a very debatable question whether the delays and other perils attending review by this court of the merits of a criminal charge when the circuit court has decided them in favor of the accused are not fraught with so much of danger to the public welfare and of oppression to individuals as to overcome any possible harm likely to result from finality of the circuit court’s decision. And when the legislature resolves that question of public policy against such review, I do not think we perform our constitutionál duty to the co-ordinate branch of government when we exercise review in defiance thereof professedly under the power of superintending control, when clearly that power as granted by the constitution, as always construed by this court, does not include the authority to review the merits.
Eor these reasons, while I concur in the judgment of the court in dismissing the writ in the present case, I cannot yield my assent to that portion of the opinion which declares that under some other circumstances we should have power to review such an order as this.