Burns v. State

128 N.W. 987, 145 Wis. 373, 1911 Wisc. LEXIS 53

• Court: Wisconsin Supreme Court
• Decided: March 14, 1911
• Status: Published

Opinion

Tbe following opinion was filed December 6, 1910:

Maeshall, J.

Serious complaint is made because tbe trial court overruled a challenge for favor of one 6f the jurors, he having testified, upon tbe voir dire, of having formed an opinion on tbe merits of tbe case, about tbe time of the occurrence in question, from what be bad beard, including some things said by tbe guardian of Adamsky; that it was a mere impression, one from which he would not say tbe accused was guilty, and which, though it remained in bis mind, would not influence him in rendering a verdict on the evidence. The examination of tbe juror was quite searching and indicated that he was a business man of more than-ordinary capability, without any personal acquaintance with tbe accused, or with tbe person whose money tbe latter was charged with having taken, without any interest in the result, more than that of citizens in general, and without any personal feeling for or against tbe accused.

The error assigned in respect to the foregoing is ruled in favor of tbe state by Baker v. State, 88 Wis. 140, 59 N. W. . It was there held, and is here affirmed, that a juror is not necessarily incompetent simply because of his having an impression or opinion respecting the merits of the case, formed from reading newspaper accounts and from other hearsay information; that in case of a challenge, as in this case, the issue presented is one of fact to be determined with reference to the evidence of the juror, his general characteristics as appears thereby, and impressions upon the court created by the opportunity for seeing him and witnessing and participating in his examination; that the other evidentiary matters referred to may so neutralize his mere statement of having formed an opinion or impression which will take some evidence to remove, that a finding that he satisfies the constitutional call for impartiality cannot be disturbed on appeal as manifestly against the clear preponderance of the evidence.

The doctrine of Baker v. State, supra, has support, and condemnation as well, in other jurisdictions. It is believed there is progressive legal thought in its favor. Some courts hold that if a juror has an impression or opinion as to the merits of a case which will take evidence to remove, he is legally incompetent to act; that however firmly and conscientiously he may believe he can act impartially in the matter, it does not cure the infirmity, for the court, in deference to the constitutional right to an impartial jury, will not permit a litigating party, without his consent, to take the chances of the juror being wrong, much less compel him to. But many other jurisdictions, in harmony with Baker v. State, hold that, notwithstanding the mental condition suggested, — in the absence of any evidence showing therewith, satisfactorily, the opinion or impression of the juror to be something more than such as is commonly created in the minds of intelligent people from reading and hearing the news from day to day, an opinion that amounts to real substantial prejudice, — incompetency does not exist, necessarily, as a matter of law, but depends upon the trial judge’s determination of fact in view of all tbe evidence and mental characteristics of tbe juror as disclosed by bis presence in court and manner of testifying. Tbe finding in that regard, in many jurisdictions, is classed tbe same as any other of fact by a trial court, as regards requirements to disturb it. This court and some others, have gone somewhat further, as indicated in this language from Reynolds v. U. S. 98 U. S. 145, 156:

“No less stringent rules 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.”'

The quoted language was referred to with approval in the Baher Gasa and voices the rule in this state. In view of that we are unable to overrule the decision of the trial court, though the decision below might well have been the other way.

Great care should be exercised in a criminal prosecution to preserve to the accused his constitutional right to an impartial jury and a fair trial. Ill-advised impatience with the failures to convict, and delays and expense in criminal prosecutions, should not be allowed to overturn or invade the fundamental safeguards of personal and property rights. Notwithstanding the decision in the instance before us, which we feel bound to make in harmony with the settled judicial policy of the state, we have no hesitancy in saying that, generally speaking, trial administration is to be commended rather than complained of, which excuses a juror upon his testifying, on the voir dire, that he has heard and read about the case and therefrom formed an opinion on the merits thereof, which persists with him and will persist till removed by evidence; notwithstanding he may testify that, in his opinion, be can act impartially between tbe parties upon bearing tbe evidence. Doubtless circumstances may alter cases as they do in most situations.

Error is assigned because tbe court instructed tbe jury to tbe effect that, if tbe accused converted to bis own use any of Adamsky’s money, be did so as bailee. It is suggested that tbe court should have defined tbe term “bailee,” as used in tbe statute, and left it to the jury to find the fact as to whether the circumstances satisfied such statute or not.

A court may properly instruct a jury in a criminal case, as well as any other, respecting any fact, or facts, established by tbe evidence beyond any room for reasonable controversy, and when such evidentiary facts exist establishing, beyond any room for reasonable controversy, an essential of any ultimate conclusion sought, it is not harmful error, if error at all, to treat such essential as having been proven, as tbe court here did in saying that tbe accused was a bailee of whatever of Adamsky’s money came to bis possession.

It seems to be thought that a bailment was not established by tbe evidence because some sort of contract inter partes was essential thereto. No particular ceremony or actual meeting of minds is necessary to tbe creation of a bailment. If one, without tbe trespass which characterizes ordinary larceny, comes into possession of any personalty of another and is in duty bound to exercise some degree of care to preserve and restore the thing to such other or to some person for that other, or otherwise account for the property as that of such other, according to circumstances, — he is a bailee. It is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not.

It is said, generally, in the books, that a bailment is created by delivery of the personalty to one person by another to be dealt with in specie as the property of such other person under a contract, express or implied, but tbe word “contract” is used in a broad sense. Tbe mutuality essential to tbe contractual feature may be created by operation of law as well as by tbe acts of tbe parties with intention to contract.

So it makes no difference whether tbe thing be intrusted to a person by tbe owner, or another, or by some one for tbe owner or by tbe law to tbe same end. Taking possession without present intent to appropriate raises all tbe contractual elements essential to a bailment. So tbe person who bona fide recovers tbe property of another which has been lost, or irresponsibly cast away by an insane man, as in this case, is a bailee as much as if tbe same property were intrusted to such person by contract inter partes. In tbe latter case tbe contract creates tbe duty. In tbe former tbe law creates it. Such a situation is to be distinguished from that where one knowingly receives money paid him by mistake and fraudulently retains it. There tbe element of bona fide possession may be said not to exist and so tbe duty accompanied by such possession essential to a bailment not to have been created. Fulcher v. State, 32 Tex. Crim. 621, 25 S. W. 625. We refer to that case by way of illustration, not by way of approval. Tbe logic of it may not be strictly correct.

Tbe finder of properly who voluntarily bona fide takes it into bis possession, immediately, thereupon, has imposed upon him by law tbe duties of a depositary, tbe mildest type, as regards degree of duty, of bailee. Story, Bailments, §§ 86, 8Y; Edwards, Bailments (3d ed.) § 18; Paine, Bail-ments, § 24.

So tbe finder here of tbe cast-away money was clearly a bailee, and when bis duties were voluntarily assumed by tbe accused be became such, and as there was no controversy in respect to such finding and assumption, tbe court’s reference to tbe matter was proper.

Tbe next suggestion in behalf of plaintiff in error is that, if tbe accused was guilty of any offense, it was that of having broken the package and extracted therefrom part of the contents for the purpose of appropriating it to his own use, and executed such purpose, thus committing the offense of larceny, not of conversion by a bailee. It is a sufficient answer thereto that the purpose of the statute, sec. 4415, Stats. (1898), was to abolish the distinction between conversion by a bailee of an entire thing, as a quantity of property in a package of some kind, and the unlawful breaking of the package and conversion of part or all of the contents, — whether preceded by the element of breaking bulk with intent to permanently deprive the owner of the thing appropriated or not, — making the latter a statutory class of larcenies, differing only from ordinary larcenies, by absence in the former of the element of trespass in gaining original possession, which is essential to the latter. Topolewski v. State, 130 Wis. 244, 109 N. W. 1031. The meaning of the statute, as indicated, seems very plain:

“Whoever being a bailee of any chattel, money or valuable security shall fraudulently take or fraudulently convert the same to his own use or to the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny. . . .” Sec. 4415, Stats. (1898).

It follows that the acquittal of the accused of the offense of larceny is not inconsistent with his conviction of the statute offense of larceny as bailee.

Error is assigned because of the misconduct of a juror after the panel had retired to deliberate upon their verdict, and misconduct of the officer in charge of the jury. Such misconduct consisted in the former, while the latter were in his charge, and absent from their room at the supper hour, permitting a paper to be possessed by them by which they learned that the conditions of their deliberations were known to the public, and particularly the fact that one juror was persisting against the opinions of his fellows that the accused was not guilty. Though the conduct of the officer and the jury as well, and the newspaper too, are reprehensible to a high degree, we are unable to reach a conclusion that, had the improper conduct not occurred, the result might, within reasonable probabilities, have been different. Therefore, under the uniform course of our administration and in harmony with the letter and spirit of sec. 2829 of the written law, the misconduct does not call for a reversal.

Notwithstanding the result as to the last assignment of error treated, we are constrained to severely condemn such conduct as the officer and jury were guilty of, and condemn the abuse of freedom of the press in publishing the secrets of the jury room while the case was there being considered. The press is accorded great freedom and constitutional protection, but it should not be forgotten that it is responsible morally and legally for abuse of that right. It is of great importance to the public welfare that such right should be kept inviolate, but of equal importance that its abuses should be prevented *so far as practicable and otherwise punished both by legal remedies and by condemnation at the bar of public opinion.

Judicial proceedings, in a cáse which the law requires to be •conducted in secret for the proper administration of justice, should never be, while the case is on trial, given publicity by the press. It is not infrequent that proceedings in courts of England in an important criminal case, are highly commended by the press of this country and comparison with procedure in the latter unjustly made unfavorable thereto, without appreciating that the very things which attract the favorable mention, are promoted by restrictions upon personal liberty which do not exist here at all, or are sparingly enforced. •Such an occurrence during an important criminal trial after retirement of the jury to deliberate upon their verdict, as •publication in a newspaper of the secrets of the jury room, -would, in the mother country, be visited by prompt and severe punishment as contempt of court. That precedents of lite treafanent of offenders may be found in the decisions of’ courts of this country, is well illustrated by State v. Howell, 80 Conn. 668, 69 Atl. 1057. Here the duty to abstain from such abuses is just as great as elsewhere. Here the sense of duty incident to good citizenship and public condemnation for such abuses ought to be sufficient to prevent such occurrences. Moreover, trial courts should be alive to the importance of protecting jurors from such interference during the course of a trial, particularly after their retirement to deliberate upon their verdict, in important criminal cases.

The best administration requires that all avenues of communication between the jury and others, except the officer in charge and the court in the presence of attorneys for the respective parties, should be closed as effectually as possible and all violations of duty in that respect by jurors and officers and others should be severely, rebuked or punished according to circumstances. The inadvertence which permits jurors, after having retired for such deliberation, to leave the jury room under such circumstances as to get into communication with others and read the newspapers, should be carefully avoided. This is but reiterating what has heretofore been said by this court on several occasions. Hempton v. State, 111 Wis. 127, 86 N. W. 596; Oborn v. State, 143 Wis. 249, 126 N. W. 737.

We do not overlook the complaint that Adamsky was permitted to testify notwithstanding his impaired mental condition, particularly at the time of the occurrences in question. A person is not necessarily incompetent to testify because of such impairment. Whether he is so infirm by reason of insanity, or otherwise, as not to be entitled to testify at all, is generally in the field of competency. Therefore the decision of the trial court in favor of receiving the evidence for what it is worth, cannot be disturbed unless manifestly wrong. Ordinarily such infirmity goes to the weight of the witness’s evidence, not to competency to testify, unless the impairment is substantially total or sucb as to render tbe person wholly unconscious of tbe obligations of an oatb. Best, Evidence (lOtb ed.) §§ 148, 150; Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164.

Tbe foregoing covers all tbe complaints on bebalf of tbe accused wbicb require special attention.

By the Court. — Tbe judgment is affirmed.

A motion for a rebearing was denied March 14, 1911.