Baker v. State

59 N.W. 570, 88 Wis. 140, 1894 Wisc. LEXIS 28

• Court: Wisconsin Supreme Court
• Decided: May 25, 1894
• Status: Published

Opinion

Cassoday, J.

As indicated in the foregoing statement, Baher and Perrin were together charged with the larceny. They pleaded separately, and each secured a separate trial, but were both convicted nearly four years ago. Such judgment against Perrin was affirmed by this' court, November 17, 1891. Perrin v. State, 81 Wis. 135. On the same day the judgment against Baher was reversed for the reasons given in the opinion by Mr. Justice WiNslow in the case. Baker v. State, 80 Wis. 416. Baher was again tried and convicted a little over two years ago, and the judgment entered therein is now here for review on this writ of error.

1. It is alleged in the plea in abatement put in just before the last trial, in effect, that the trial court was without jurisdiction because Balter was brought into Ashland county from Michigan forcibly and without extradition papers. Assuming such to be the facts, still that would not have deprived the trial court of jurisdiction. Ker v. People, 110 Ill. 627, affirmed, Ker v. Illinois, 119 U. S. 436; Mahon v. Justice, 127 U. S. 700. In each of these cases the prisoner was kidnaped and then brought within the jurisdiction of the trial court. To the same, effect: Lascelles v. Georgia, 148 U. S. 537; State ex rel. Brown v. Stewart, 60 Wis. 587. But in the ease at bar such portion of the plea in abatement was denied and put in issue by the state; and, since Balter failed to offer any evidence that he was so forcibly brought into Ashland county and' the state, it must be assumed that he voluntarily came within the jurisdiction of the trial court. So, upon the record before us, the question presented is really not in the case.

2. To the balance of the plea.in abatement the state demurred, and the trial court appears to have properly sustained the demurrer. But the contention is that the allowance by the court of such plea -in abatement to be filed just before the last trial operated as a withdrawal of the plea of not guilty entered prior to the first trial. In support of such contention, counsel cite the statute requiring a plea in abatement to be filed “ before pleading to the merits” (sec. 4654, S. & B. Ann. Stats.), and also cites Martin v. State, 79 Wis. 165; Baker v. State, 80 Wis. 416; Ryan v. State, 83 Wis. 486. But none of these cases support any such contention. The original plea in abatement, filed before pleading to the merits, was held bad on its face when the case was here before. However irregular it may have been for the trial court to allow Baiter to file a new plea in abatement after having pleaded to the merits, and just before the last trial, yet it was granted at his request and as a favor to him, and he is in no position to take advantage of such irregularity. While a right to plead in abatement may be waived by pleading to the merits, yet it does not follow that a plea to the merits is to be deemed waived or withdrawn by subsequently filing a plea in abatement. Dilatory pleas are not favored in the law, whereas pleas in bar and to the merits are favored. Hooker v. Greene, 50 Wis. 276, 277. Certainly no such question can be raised for the first time in this court.

3. Error is assigned because the trial court, just before the last trial, refused to change the venue on the ground of the prejudice of the trial judge, as required by sec. 4680, R. S. But, as appears in the foregoing statement, Balter had two years before obtained one change of venue upon the same ground, and the section of the statute last cited expressly provides that “not more than one change of venue shall be awarded in any cause.” So sec. 4679, R. S., provides that “the party accused shall be entitled to a change of venue but once and no more.” These provisions were both considered in Martin v. State, 35 Wis. 294, and it was there expressly held that, “ when the defendant in a criminal prosecution has obtained a change of venue for the cause mentioned in either of those sections, he cannot« have another change either for the same cause or for that mentioned in the other section.” Thus it appears that the trial court had no statutory authority to award such change of venue, and certainly he had no such authority independent of and contrary to the statute. It may have been embarrassing for the judge to preside on the trial after the filing of the affidavit of his prejudice; but he appears to have acted conscientiously and fairly, according to his sense of duty, and we perceive nothing censurable in his conduct. The mere fact that he wrote a letter to the attorney general exhibiting some anxiety as to the correctness of the former bill of exceptions, and suggested the propriety of his being aided by counsel w.ho represented the state upon the former trial, did not disqualify him from presiding.

4. On December 29, 1891, the trial court, in pursuance of a stipulation between the attorneys representing the state and the defendant,Baker, respectively, made an order to the effect that Gr. W. Cate and R. A. Cole be appointed as attorneys for Balter, and be paid at public expense, and that such appointment should begin as of January 23,1891, and that such stipulation should be enforced by the court, as far as lawful and right so to do. On February 15,1892, the defendant having claimed that he had been coerced into waiving his right to object to counsel who had appeared in behalf of the state-, the court made two orders, to the effect that all orders based on such stipulations be and the same were thereby vacated and set aside; and the court thereupon called upon the defendant and his said counsel in open court to raise any objections to counsel on the part of the state; and the said counsel for Balter and each of them having failed to make any such objection, it was ordered that said Rossman, who had previously been appointed as counsel to assist the district attorney, be continued in that capacity for the then present trial of this ease in that court only; and, the defendant having requested that W. W. O’Keefe and R. A. Cole be continued as counsel to defend him at public expense, it was thereby ordered that they be permitted to serve in that capacity, and continue in the defense of the action at the expense of the county, but for that trial and in that court only. Such being the record, it is very manifest that there is no reversible error in the making off such orders.

5. Error is assigned because the court allowed a man by the name of Wentworth to become a juryman. He was sworn and examined as to his qualifications to act as such juryman, and testified to the effect that he had never heard any testimony in the case; that he had no personal knowledge of the facts upon which the case depended; that he never saw Balter before; that from what he had read in the newspapers and heard said about the case he had formed an opinion which it would take evidence to remove; that he was afraid he could not give the testimony the same weight and decide the case the same as though he had no opinion; that he had no prejudice for or against the accused; that he thought he could and would lay aside what he had heard and read, and try the case according to the evidence given in court, and upon that alone; that he understood the burden of proof was upon the state; that he felt satisfied that he could try the defendant upon the evidence alone, and would be obliged to do so; that he would determine the guilt or innocence of the accused upon the testimony, and that alone; that he would set aside the opinion he had formed as against the testimony; that such opinion would have no weight as against the testimony which should be submitted in court; that nothing he had read or heard would bias him in returning a just verdict, the same as though he had never heard about the cause, — - of that he felt confident.

The facts bring the case very near, if not upon, the border line. In' all such cases the safer practice is for the trial court to excuse the person from sitting upon the jury whenever there is any reasonable doubt as to his impartiality. The question recurs whether it was error to allow Mr. Wentworth to become a juryman. It must be conceded that in all criminal prosecutions the accused enjoys the right “ to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed.” Sec. 7, art. I, Const. Wis.; State ex rel. Lar-kin v. Ryan, 70 Wis. 681. Upon the facts stated, can we say, as a matter of law, that Wentworth was not an impartial juror within the meaning of this constitutional guarantee? Counsel for the accused seems to rely very much upon the decision in Coughlin v. People, 144 Ill. 140. In that case, as we understand it, there was less reason for holding the two jurymen to be impartial, than in the case at bar, but, notwithstanding that fact, two of the justices dissented. The question is there learnedly discussed in both the majority and minority opinions. As indicated, we agree with that court to the extent of holding that the juryman must be impartial, but we are unwilling to hold that “ he should be wholly free, even from the suspicion of bias,” in order to be qualified to sit. Certainly the qualification of a person to sit as a' juryman must depend upon the partial or impartial condition of his own mind, and not upon the existence or nonexistence of a suspicion of bias against him in the mind of some other person. How and by whom is the fact of such mental condition to be determined in a case like this?

In Schoeffler v. State, 3 Wis. 823, it was held that “ challenge to the favor involves a question of fact, to be determined by triers. It involves facts which do not necessarily of themselves disqualify the juror, but may do so, according to the state or condition of mind produced by them. An opinion formed or a bias entertained upon merely hypothetical grounds, such as, if what the juror has heard or read be true, if he is personally mimical, etc.,— all such are causes of challenge to the favor wherein the law pronounces no absolute judgment, but leaves the question to be determined by triers, which question is, Does the juror stand indifferent between the parties? . . . The truth of the facts alleged as ground of challenge to the favor, as well as their effect upon the mind of the juror, is to be determined by triers. In case triers are not demanded by the parties, or ordered by the court, a challenge to the favor may be determined by the court.” In this state it has long-been the practice, sanctioned by an early statute, for the trial court to determine such qualification without the aid of triers. S. & B. Ann. Stats, sec. 2849. The statute also declares that “ it shall be no cause of challenge to a juror, that he may have obtained information of the matters at issue through newspapers or public journals, if he shall have received no bias or prejudice thereby; or that he is an inhabitant of or liable to pay taxes in a county interested in the action.” S. & B. Ann. Stats, sec. 2850. A similar statute under a like constitutional provision in Illinois has been held to be valid. Spies v. People, 122 Ill. 1; Spies v. Illinois, 123 U. S. 131; Coughlin v. People, 144 Ill. 140. Even in the case last cited it was, in effect, held that under such - statute the competency of a juror was a judicial question, to be determined by the court from the evidence. In Pennsylvania it has been held that “ where impressions are formed on rumor or newspaper statements which the juror feels conscious he can dismiss, or has no fixed belief or prejudice, and can say he can fairly try the prisoner on the evidence freed from the influence of the impressions, he is competent.” Staup v. Comm. 14 Pa. St. 458; Comm. v. Taylor, 129 Pa. St. 534. In Reynolds v. U. S. 98 U. S. 156, Waite, C. J., speaking for the whole court, said “that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as-the facts are concerned, like any other issue of that character, upon the evidence. The finding of the court upon that issue ought not to be set aside by a reviewing court unless the error is manifest. No less stringent i’ules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that, upon the evidence, the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the conscience or discretion of the court.” To the same effect: Spies v. Illinois, 123 U. S. 179; People v. McGonegal, 136 N. Y. 62; Phelps v. People, 72 N. Y. 334; State v. Cunningham, 100 Mo. 382; State v. Elkins, 101 Mo. 344; State v. Williamson, 106 Mo. 162; State v. Gray, 19 Rev. 212; Kumli v. Southern Pac. Co. 21 Oreg. 505. For other cases to the same effect, see the brief of the attorney general.

The opinion of Mr. Wentworth, based upon what he had read in the newspapers and heard, as stated, was, as aptly held in Schoeffler v. State, 3 Wis. 823, nothing more than “ a bias entertained upon merely hypothetical grounds; ” that is to say, it was entirely dependent upon the truthfulness of what he had so read and heard. There is no evidence as to the effect of what he had so read and heard upon his mind except his own sworn statements and his appearance upon the stand, and the trial court was in a far better position to weigh and determine the truthfulness of such evidence than this court can be. Within the rule sanctioned by so many adjudications, we cannot hold, as a matter of fact, that the finding of the trial court to the effect that the juror was indifferent as between the parties was contrary to the evidence, nor, as a matter of law, that the court abused its discretion in permitting him to become a juryman. Since most intelligent people are supposed to read in the newspapers the account of the current events in the county where they reside, it is impracticable, and would defeat the ends of justice, to exclude from juries all persons who happen to entertain an impression or opinion from what they have so read. The exception to allowing'Went-worth to sit upon the jury is overruled.

6. The second count of the original information is given in full in the foregoing statement. The first count in that information was substantially the same, except that “Chauncey H. Crosby, vice president of the United States Express Company, an unincorporated joint stock association organized and existing in the state of Hew York and having its principal place of business in the city of Hew York, in the state of Hew York,” is alleged to have been the owner of the money stolen, instead of the Ashland Iron Mining Company, as stated in the second count. On the first witness being called for the state, Balter's counsel requested the state to elect upon which count the prosecution would proceed. Thereupon the district attorney elected to proceed upon the second count. Bakers counsel then moved to quash that count, which motion was denied. Thereupon Balter’s counsel objected to any evidence under the second count, on the ground that it did not state facts sufficient to constitute a cause of action. Thereupon the state, with the consent of the court so to do, withdrew such election, and proceeded upon the original information containing both counts. Balter’s counsel then objected to any evidence under such information, and moved to quash the same, for the reason that it alleges the ownership of the property in two different persons, without alleging that either had any special interest therein; which objection and motion were severally overruled. The trial proceeded, and, after considerable testimony was taken, the state, with the consent of the court, amended the second count of the information so as to conform to the testimony taken, and so as to read as set forth in the foregoing statement, wherein it is alleged that the whole amount of the money so stolen was $40,680, of which $26,700 was the property of the Ash-land Iron Mining Company, and $13,980 the property of the Germania Iron Company; and the first count in the original information was withdrawn. Numerous objections and motions were made upon the part of Balter to such amendments and changes of the information, but we are constrained to hold that they were each and all properly overruled. As the trial court properly held, there was but one offense charged or proved, and that was the offense of grand larceny. The amendments, so far as Baker was concerned, all related to the amount of money stolen and the ownership of the same. Our statute expressly declares that: “ Any court of record in which the trial of an indictment or information is had, may forthwith allow amendment in case of variance between the statement in the indictment or information and the proof, in the following cases: In the name or description of any person, place, or premises, or of any thing, writing, or record, or the ownership of any property described in the indictment or informa-iion, and in all cases where the variance between the indictment or information and the proof are not material to the'merits of the case.’’ R. S. sec. 4703. The amount or value of the money stolen only becomes important on a trial-for the offense, when it is necessary to fix the grade of the offense. Phelps v. People, 72 N. Y. 334. Here, the difference in the amount named in the original-information and that named in the second count as amended is of no significance as bearing upon the offense charged. It is, of course, well that the person having the general ownership of property stolen should be named in the information as such owner, but it seems to be sufficient if the bailee or person having a special property therein be named as owner. Ibid. The right of the trial court to amend the information in the manner indicated seems to be very clear under the statute. Miller v. State, 25 Wis. 384. The question whether the prosecution should have been required to elect upon which count the state would rely, was certainly within the discretion of the trial court. Martin v. State, 79 Wis. 165. The plea of not guilty, entered by Baker prior to such amendment, continued to stand as the plea of not guilty to the second count as amended. Rasmussen v. State, 63 Wis. 1.

7. The direction to the officer in charge to keep the jury together was manifestly within the discretionary powers of the trial court. The same is true respecting the modification of such direction so as to allow jurymen to attend their respective places of business with permission of the court.

8. The money, etc., taken from Baker when he was arrested, and identified as such, was properly admitted in evidence against an objection that it was immaterial, irrelevant, and incompetent, and the court properly refused to strike it out. In answer to the suggestion of Baker’s counsel to the effect that such money, etc., did not appear to be a part of the property or funds taken from the Iron Exchange Bank at the time of the robbery in question, the court said: “ I think the evidence introduced upon the part of the state shows to us that it is a portion of the money taken at that time; consequently the motion is denied.” The record simply shows “ exception by defendant.” This exception must be construed as applicable only to such denial of the motion, and not to the fact that the court expressed an opinion upon that branch of the evidence. If that expression of opinion was deemed objectionable, it was no more than fair to the court that counsel should have called specific attention to it, and then it might have been withdrawn or corrected at the time. Gilchrist v. Brande, 58 Wis. 184. Besides, the remark was by way of answer, and addressed to counsel, and not to the jury, and manifestly was intended as merely saying that the evidence on the part of the state tended to prove that it was a part of the same money. Ibid.- Otherwise the court would not have submitted the question to the jury.

9. Numerous exceptions are taken to the charge of the court, but the law of the case was pretty fully settled when it was here before, and the charge seems to be full and fair and in conformity with the opinion of this court in the case.

10. Counsel asks that Baker be discharged on habeas corpus, on the ground that he has served out his term of imprisonment. As indicated in the foregoing statement, he was sentenced March 11, 1892, for the term of five years. That is conceded to be the limit of imprisonment for such an offense. S. & B. Ann. Stats, sec. 4415. The contention is that, under ch. 238, Laws of 1880 (sec. 4928a, S. & B. Ann. Stats.), Balter is by good behavior entitled to a diminution of his sentence down to three years and nine months; and that, by counting the time actually served under his present sentence and also under his former sentence, he has served the time last mentioned. But that cannot be so, since the first judgment was reversed November 17, 1891. The time during which he was not under sentence cannot be counted on any theory. Assuming that the statute last cited is a valid enactment, which is, to say the least, a question of very grave doubt, and assuming that his conduct has been good up to the present time, yet by the very terms of the act he is still liable to forfeit and be deprived of all the time he has earned by good conduct. The theory of the act seems to be that it shall be administered by the warden with the consent of the directors. But in such a case this court only possesses appellate jurisdiction. We have no authority to take oral testimony as to credits or forfeitures. Only a little over two years of the sentence before us for review has expired. There is no law authorizing us to deduct from such sentence the time he served under the former sentence. Even upon habeas corpus, we can only inquire into matters going to the jurisdiction. The statute expressly declares that: “No person shall be entitled to prosecute such writ who shall have been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction,” etc. K. S. sec. 3408. The accused stands committed and is now detained, by virtue of such a judgment. The court appears to have had jurisdiction of the person .and subject matter, and does not appear to have exceeded its authority. This fully answers the application for a habeas corpus.

As to the effect of abduction, see cases collected in a note to Kingen v. Kelly, 15 L. R. A. 177.— Rep.

The case has been contested at every turn. Seemingly no objection nor exception has been omitted which zealous, persistent, and indefatigable counsel could devise. It is said that there are more than 1,000 exceptions in the record, and these are grouped under more than forty assignments of error, upon each of which counsel claim to rely. We have patiently listened to more than five hours’ argument in behalf of the accused; and, in addition to this lengthy opinion, we have considered the other points, not mentioned, sufficiently to reach the conclusion that they are each and all too finical and inconsequential to require' specific consideration in any further written opinion; and hence must severally be regarded as overruled.

By the Court.— The judgment of the circuit court is affirmed, and the application for a writ of habeas corpus is denied.