Vinje, J.
It will be seen from the foregoing statement of facts that as to some of the defendants the only proof of the state as to either offense charged in the information rested solely upon an alleged conspiracy on the part of all the defendants to encompass the assault charged. It was proper to show, if it could, that the manner in which each defendant became ah accessory before the fact was through a conspiracy entered into before the shooting took place at the third meeting. If such conspiracy was established, then it became a matter of secondary importance just what part each defendant topk in carrying it out. If, on the other hand, the conspiracy, was not established, and if there was no concert of action agreed upon or understood before the assault began at the third meeting, then it is of the utmost importance to determine just what each defendant said and did at the time of the assault, since he could be held only as an active participant therein.
[89]*89In proving a conspiracy great latitude in the admission of evidence is permissible, and the limits thereof rest largely in the discretion of the trial court. Error is alleged because the court admitted the contents of much of the literature found at the hall and at the home of the Nardinis. It was proper to show that some, if not all, of the defendants belonged to the same club or circle or home, and the character of that club, circle, or home had a bearing upon the question of alleged conspiracy. But proof that the defendants were anarchists, or were even guilty of criminal anarchy, is not sufficient of itself to prove a conspiracy to murder. The proof, most favorably considered in behalf of the state, goes no further than to show that the defendants or some of them were anarchists. It is barren of the necessary indicia of the conspiracy charged. The letters of Testolin show at most only an intent on the part of the writer and some others to disturb the next meeting, if one were held. If the proof of conspiracy failed, they were admissible in evidence only against himself.
It appears clearly enough that most of the defendants were angry at Guliani and his party. Whether it was because he spoke about the war and the citizen’s duty to the state, or whether it was because he was not a Catholic and spoke slightingly about that religion, is not clear. Probably because of both, but perhaps chiefly for the latter reason. It is also clear that the defendants or some of them entertained the thought of disturbing the meeting, but the execution of that thought would be only a misdemeanor, and those joining in it could not be held for the crime charged unless the jury found that its execution would probably lead to an assault with intent to murder. This question the court refused to submit to the jury though in various forms requested to do so.
In addition to the paucity of proof showing a conspiracy to commit the offense charged, there is considerable undisputed evidence that the assault as made was the independent and spontaneous act of a few of the defendants, precipitated [90]*90when the police began to search Vincent Fratesi and Bartolo Testolin. The testimony shows that a large number of women and children were there — some in the so-called group of defendants which the evidence showed consisted of from twenty to thirty persons. The Nardimis had their little boy with them and stood well in front, where the trouble might be expected. Most of the defendants were arrested soon after the shooting took place, but no weapons were found upon any of them. Out of a large number of eye-witnesses to the assault examined, there was no evidence that any one besides Formaceo, who shot first and was killed, Marinelli, who was shot and subsequently died from his wounds, Vincent Fratesi, and Lilli had weapons of any kind. It would seem probable that a group of twenty or more intending to attack a crowd of nearly a hundred with the intent to murder would arm more of their number with weapons of some kind. Moreover, it appears that as soon as the shooting commenced both crowds began immediately to scatter. This is true, so far as the evidence discloses, of all the defendants except Vincent Fratesi and Lilli. While no one of these reasons is singly of any controlling weight, they together, with the total lack of any evidence of a preconcerted plan, persuade us that the proof as to a conspiracy failed, and we so hold.
This naturally leads us to an examination of the testimony as to what part, if any, each defendant took in the assault. The substance of such testimony has been set out in the statement of facts and it is unnecessary to repeat it here. From it we conclude and determine that there is no evidence whatever that Pasquale Nardini and Angelo Pantaleoni took any part at any time in any assault whatsoever, and that as to them the judgment is reversed, with directions to discharge them from further custody.
It is quite probable that Peter Bianchi, Daniel Belucci, and Louis Serafini were not present at the assault. But be that as it may, it is quite certain that as to them and as to Mary [91]*91Nardini and Adolph Fratesi the evidence would not warrant the conviction of any graver charge than that of simple assault. While they have not been imprisoned under a conviction of that offense, the fact remains that they have been deprived of their liberty under much harsher conditions and for a much longer time than they could haye been had such been their conviction. Therefore, looking at the substance of things rather than at technical exactness in the manner of conviction, and in furtherance of substantial justice, it is held that they have been sufficiently punished under the improper conviction for any offense of which they could have been found guilty. The judgment is therefore reversed as to them, with directions to discharge them from further custody.
As to the defendants Gavina Dmurra and Bartolo Testolin we conclude the evidence is of a character which would, with the conspiracy issue out, warrant the jury, under proper instructions, to find them guilty as charged; or to find them guilty of an assault with intent to do great bodily harm; or to find them guilty of a simple assault; or to acquit them. Since, for reasons hereinafter to be stated, error intervened prejudicially affecting their conviction, the judgment as to them is reversed and the case remanded for a new trial.
There is credible evidence that the defendants Vincent Fratesi and Amedeo Lilli were armed with revolvers and that they used the same during the assault. .This evidence, if believed, and we must assume the jury did believe it, warrants their conviction in spite of any lack of conspiracy, unless other prejudicial error intervened to affect the verdict based upon such evidence. For the reasons hereafter stated we conclude that as to them no prejudicial error affects the verdict, and as to them the judgment is affirmed.
We have thus briefly and early indicated the result reached to the end that our further inquiries may be directed to only such assignments of error as affect the convicted defendants or those awarded a new trial.
[92]*92Exceptions are taken in defendants’ brief to some remarks of counsel for the state in arguing the case to the jury; to restrictions' as to the cross-examination of some of the state’s witnesses, as well as the attitude of the judge throughout the trial towards defendants’ counsel.
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Vinje, J.
It will be seen from the foregoing statement of facts that as to some of the defendants the only proof of the state as to either offense charged in the information rested solely upon an alleged conspiracy on the part of all the defendants to encompass the assault charged. It was proper to show, if it could, that the manner in which each defendant became ah accessory before the fact was through a conspiracy entered into before the shooting took place at the third meeting. If such conspiracy was established, then it became a matter of secondary importance just what part each defendant topk in carrying it out. If, on the other hand, the conspiracy, was not established, and if there was no concert of action agreed upon or understood before the assault began at the third meeting, then it is of the utmost importance to determine just what each defendant said and did at the time of the assault, since he could be held only as an active participant therein.
[89]*89In proving a conspiracy great latitude in the admission of evidence is permissible, and the limits thereof rest largely in the discretion of the trial court. Error is alleged because the court admitted the contents of much of the literature found at the hall and at the home of the Nardinis. It was proper to show that some, if not all, of the defendants belonged to the same club or circle or home, and the character of that club, circle, or home had a bearing upon the question of alleged conspiracy. But proof that the defendants were anarchists, or were even guilty of criminal anarchy, is not sufficient of itself to prove a conspiracy to murder. The proof, most favorably considered in behalf of the state, goes no further than to show that the defendants or some of them were anarchists. It is barren of the necessary indicia of the conspiracy charged. The letters of Testolin show at most only an intent on the part of the writer and some others to disturb the next meeting, if one were held. If the proof of conspiracy failed, they were admissible in evidence only against himself.
It appears clearly enough that most of the defendants were angry at Guliani and his party. Whether it was because he spoke about the war and the citizen’s duty to the state, or whether it was because he was not a Catholic and spoke slightingly about that religion, is not clear. Probably because of both, but perhaps chiefly for the latter reason. It is also clear that the defendants or some of them entertained the thought of disturbing the meeting, but the execution of that thought would be only a misdemeanor, and those joining in it could not be held for the crime charged unless the jury found that its execution would probably lead to an assault with intent to murder. This question the court refused to submit to the jury though in various forms requested to do so.
In addition to the paucity of proof showing a conspiracy to commit the offense charged, there is considerable undisputed evidence that the assault as made was the independent and spontaneous act of a few of the defendants, precipitated [90]*90when the police began to search Vincent Fratesi and Bartolo Testolin. The testimony shows that a large number of women and children were there — some in the so-called group of defendants which the evidence showed consisted of from twenty to thirty persons. The Nardimis had their little boy with them and stood well in front, where the trouble might be expected. Most of the defendants were arrested soon after the shooting took place, but no weapons were found upon any of them. Out of a large number of eye-witnesses to the assault examined, there was no evidence that any one besides Formaceo, who shot first and was killed, Marinelli, who was shot and subsequently died from his wounds, Vincent Fratesi, and Lilli had weapons of any kind. It would seem probable that a group of twenty or more intending to attack a crowd of nearly a hundred with the intent to murder would arm more of their number with weapons of some kind. Moreover, it appears that as soon as the shooting commenced both crowds began immediately to scatter. This is true, so far as the evidence discloses, of all the defendants except Vincent Fratesi and Lilli. While no one of these reasons is singly of any controlling weight, they together, with the total lack of any evidence of a preconcerted plan, persuade us that the proof as to a conspiracy failed, and we so hold.
This naturally leads us to an examination of the testimony as to what part, if any, each defendant took in the assault. The substance of such testimony has been set out in the statement of facts and it is unnecessary to repeat it here. From it we conclude and determine that there is no evidence whatever that Pasquale Nardini and Angelo Pantaleoni took any part at any time in any assault whatsoever, and that as to them the judgment is reversed, with directions to discharge them from further custody.
It is quite probable that Peter Bianchi, Daniel Belucci, and Louis Serafini were not present at the assault. But be that as it may, it is quite certain that as to them and as to Mary [91]*91Nardini and Adolph Fratesi the evidence would not warrant the conviction of any graver charge than that of simple assault. While they have not been imprisoned under a conviction of that offense, the fact remains that they have been deprived of their liberty under much harsher conditions and for a much longer time than they could haye been had such been their conviction. Therefore, looking at the substance of things rather than at technical exactness in the manner of conviction, and in furtherance of substantial justice, it is held that they have been sufficiently punished under the improper conviction for any offense of which they could have been found guilty. The judgment is therefore reversed as to them, with directions to discharge them from further custody.
As to the defendants Gavina Dmurra and Bartolo Testolin we conclude the evidence is of a character which would, with the conspiracy issue out, warrant the jury, under proper instructions, to find them guilty as charged; or to find them guilty of an assault with intent to do great bodily harm; or to find them guilty of a simple assault; or to acquit them. Since, for reasons hereinafter to be stated, error intervened prejudicially affecting their conviction, the judgment as to them is reversed and the case remanded for a new trial.
There is credible evidence that the defendants Vincent Fratesi and Amedeo Lilli were armed with revolvers and that they used the same during the assault. .This evidence, if believed, and we must assume the jury did believe it, warrants their conviction in spite of any lack of conspiracy, unless other prejudicial error intervened to affect the verdict based upon such evidence. For the reasons hereafter stated we conclude that as to them no prejudicial error affects the verdict, and as to them the judgment is affirmed.
We have thus briefly and early indicated the result reached to the end that our further inquiries may be directed to only such assignments of error as affect the convicted defendants or those awarded a new trial.
[92]*92Exceptions are taken in defendants’ brief to some remarks of counsel for the state in arguing the case to the jury; to restrictions' as to the cross-examination of some of the state’s witnesses, as well as the attitude of the judge throughout the trial towards defendants’ counsel. These exceptions have been carefully examined, with the result that we find no prejudicial error as to any of them. They do not seem of sufficient importance to merit separate detailed treatment. The trial was necessarily a long and a slow one and was sharply contested. It would be strange, indeed, if both court and counsel did not occasionally, during the fifteen days it lasted, lapse from the desired dignity and precision of language that we all agree should characterize every judicial inquiry. On the whole we feel that the trial court deserves commendation for its impartial discharge of a difficult duty. It sometimes becomes desirable, if not necessary, to bring counsel back rather abruptly to the real issues in the case. This is said without intending to reflect upon counsel in this case or in cases generally. It is said because we realize that counsel are constantly on the firing line and have little time for mature reflection during the progress of the trial, hence it is easy to go too far at times. When that occurs it becomes the duty of the court to call a halt.
The clerk of the municipal court of Milwaukee county is ex officio clerk of the district court of Milwaukee county and he was authorized to issue the warrants under which the defendants were arrested. The district court act expressly so provides. Laws 1899, ch. 218, sec. 9; Milwaukee County Laws, sec. 1347. Nor was it necessary that the record show that the complainant was orally examined under oath by the magistrate issuing the warrant. A sworn complaint in writing sufficiently, satisfies the calls of sec. 4776, Stats. State ex rel. De Puy v. Evans, 88 Wis. 255, 60 N. W. 433. So, too, an information may be filed for an offense different from that charged in the complaint. Sec. 4653, Stats.
All the defendants except Peter Bianchi requested a change [93]*93of venue. The ground for such request was chiefly this: On November 24th, and four days before the time set for the trial of defendants, there occurred in the central police station in Milwaukee a bomb explosion resulting in the killing of ten or twelve persons, two of whom, Templin and Weiler, had assisted in the arrest of the defendants. The newspapers of the city charged the explosion, if not directly to the defendants who were in jail awaiting trial, to their friends or nationality. No doubt the sentiment in the community was not the best for an impartial trial of defendants, but since the papers of the city circulated generally throughout the state and the explosion was so generally known everywhere at that time and commented upon, we cannot say that the trial court abused its discretion by refusing the change conditionally, as it did. The request was not renewed upon going to trial, and it appears the jury was secured in less than a day and only about thirty-seven jurors were examined. The apparent difficulty or ease of securing a jury can be taken into account in passing upon the alleged abuse of discretion in refusing a change of venue. In view of the probable conditions existing elsewhere than in Milwaukee and the ease with which the jury was secured, we perceive no error in the court’s ruling.
Officer Templin was examined on the preliminary examination of defendants Vincent Fratesi, Amedeo Lilli, and Peter Bianchi. Officer Weiler was examined at the preliminary examination of defendants Adolph Fratesi, Louis Serafini, Daniel Belucci, Gavina Denurra, Pasquale Nardini, Mary Nardini, Angelo Pantaleoni, and Bartolo Testolin. Templin and Weiler were killed in the bomb explosion and a transcript of their testimony was offered in evidence by the state. Upon objection made by the defendants the court ruled as to Templin’s testimony taken at the preliminary examination of Vincent Fratesi, Amedeo Lilli, and Peter Bianchi, “I shall receive the testimony so, far as Vincent Fratesi, Amedeo Lilli, and Peter Bianchi are concerned.” When [94]*94his testimony taken upon the preliminary examination of Peter Bianchi was offered the court said: “It is received only as against defendant Bianchi.” When the testimony of Weiler was offered the court said: “It will be received for the same reason indicated.” And in its charge to the jury the court told them: “You are also instructed that the testimony of Officers Weiler and Templin which was given at the preliminary examination of some of these defendants in the district court can only be considered by you as against such defendants as were present at the times of such preliminary examination or hearing.” This charge, taken in connection with the court’s ruling and the colloquy between court and counsel at the time the testimony was offered, advised the jury that the offered testimony could be considered by them only against the defendant at whose preliminary examination it was taken. The use of the expression “against such defendants as zvere present,” in view of the court’s specific statements when the testimony was offered, must have been understood by the jury as equivalent to such defendants as were having a preliminary examination when the offered testimony was taken. . So understood the testimony was admissible. Sec. 4141a, Stats. 1915.
On September 12th the defendants Peter Bianchi, Vincent Fratesi, Amedeo Lilli, Angelo Pantaleoni, Pasquale Nardini, and Adolph Fratesi were taken to the office of the district attorney, were sworn and examined by him, and their testimony reduced to writing. At the trial such testimony was offered and received in evidence over the objection of the defendants, presumably on the ground that -it was voluntarily given. In our criminal jurisprudence there is no room for such procedure. Voluntary confessions and statements made by a defendant may be used against him upon his trial, but that does not contemplate or include a sworn examination by the district attorney. There is no authority for such examination. While the administration of the oath was in fact but an idle ceremony, it by no means follows that the [95]*95defendants so regarded it. It is fair to assume they were all ignorant of the illegality of the proceeding, and the district attorney failed to advise them of their constitutional right to refuse to answer any question whose truthful answer they honestly believed would tend to incriminate them. Concede it was not strictly his duty to do so, yet he is in so far a quasi-judicial officer as to see to it that if a conviction is had it is in accordance with law. But this statement must not be taken as a criticism upon the official conduct of the district attorney in this case. We are satisfied he acted in the utmost good faith and in the sincere belief that the law sanctioned the procedure. The trial court was of the same opinion. That they should both err in this is not strange in view of the fact that neither this court, nor any other court, so far as we are advised, has ever before passed upon a like question.
To the defendants the examination no doubt assumed the form and sanctity of a judicial proceeding. The oath administered required them to tell the truth. It will not lie in the mouth of even a prosecuting officer, much less of a court, to say that an oath carries with it no sanction. While good ethics and morals require the truth to be told upon all occasions, the necessity for so doing is in law regarded as accentuated by the administration of the oath. The sworn witness is under a species of extra-moral duress to tell the truth. When that fact is coupled with the fact of the illegality of the proceeding, it will be readily perceived that the testimony given by them falls neither under the head of what is ordinarily understood to be a voluntary statement or confession, nor under that of testimony taken in a lawful judicial inquiry. In a criminal case a defendant cannot be compelled to testify. When he does it is his voluntary act, and his statements so made are regarded to be voluntary and therefore admissible in evidence against him. Here the testimony given was not voluntary. This court recognizes the doctrine that a statement may be voluntary though not vol[96]*96unteered (Tarasinski v. State, 146 Wis. 508, 131 N. W. 889), but that is quite different from a statement obtained under the quasi duress of an oath. For the reasons assigned the statements were erroneously admitted in evidence.
It is idle to discuss whether they worked prejudice as to those of the defendants that are discharged. But since Vincent Fratesi and Amedeo Lilli are held under the conviction, it becomes necessary to determine whether their statements erroneously received in evidence materially affected the verdict as to them. We deem it unnecessary to give even a synopsis of their statements. It is sufficient to say that they relate almost wholly to their connection with the hall or circle at 300 Bishop avenue and with their belief or disbelief in anarchy. They both contain disclaimers of any knowledge of or connection with any conspiracy whatever, and denials of the fact that they took any part in the assault at the third meeting. It is therefore evident that their statements bear upon the subject of a conspiracy and not upon the assault. At least no damaging fact as to the assault is contained in either statement.
As before indicated, the evidence against these two defendants as active participants in the deadly assault is quite clear and satisfactory and supports the verdict. That being so, it becomes quite immaterial whether or not they were anarchists and whether or not they joined a conspiracy as charged. The result we reach is that as to these two defendants the verdict would probably not have been different had their statements been excluded. Hence their admission was not prejudicial error as to them.
The only explanation that can be given to the fact that all the defendants were convicted of the crime charged in the first count of the information and that all received the same sentence of twenty-five years in the state prison is that the jury found a conspiracy to commit such offense existed before they came to the third meeting and that the trial judge took the same view or he would not have made their sentence [97]*97the same. With the conspiracy feature out there was nothing, as we have seen, to convict some of the defendants of any offense, and only a simple assault shown as against others. The instructions, therefore, relating to a conspiracy to commit a felony and those relating to criminal anarchy as defined by secs. 4522a and 4522& of our statutes should not have been given. In view of the direct testimony showing active and deadly participation in the assault by Vincent Fratesi and Amedeo Lilli, we conclude that the instructions referred to did not prejudicially affect them. But we do think, in view of the meager and uncertain evidence connecting Gavina Denurra and Bartolo Testolin with the crime of which they were found guilty, that the giving of'such instructions and permitting the jury to find a conspiracy was prejudicial to them. We are inclined to the view that had the conspiracy feature been eliminated as it should have been at the close of the state’s case, and had proper instructions relative to what is necessary to become a participant in an assault, in the absence of a conspiracy, been given, the verdict as to them might have been different.
By the Court. — As to the defendants Vincent Fratesi and Amedeo Lilli the judgment is affirmed. As to the defendants Gavina Denurra and Bartolo Testolin the judgment is reversed, and the cause remanded for a new trial. The warden of the state prison will deliver them into the custody of the sheriff of Milwaukee county, who will hold them in custody until further order of the court. As to the defendants Pasquale Nardini, Angelo Pantaleoni, Peter Bianchi, Daniel Belucci, Louis Serafim, Adolph Fratesi, and Mary Nardini the judgment is reversed, and the cause is remanded with directions to discharge them from further custody. The warden of the state prison will deliver them into the custody of the sheriff o.f Milwaukee county, who will hold them in custody until discharged pursuant to this direction.
Kerwin and Rosenberry, JJ., took no part.