Jackson v. State

64 N.W. 838, 91 Wis. 253, 1895 Wisc. LEXIS 30

Opinion

Cassoday, C. J.

1. The statute under which the plaintiff in error was convicted provides that, “ in case any man shall commit fornication with a female of previous chaste character under the age of fifteen years, he shall, upon conviction thereof, be punished,” etc. S. & B. Ann. Stats, sec. 4580. The second count, as originally drawn, was substantially in the language of the statute. Such language, according to its natural import, being fully descriptive of the offense, would ordinarily he deemed sufficient even in case of an indictment. Potter v. U. S. 155 U. S. 438; Dunbar v. U. S. 156 U. S. 185. Our statute expressly sanctions such pleading. E. S. sec. 4669; State v. Mueller, 85 Wis. 206. But it is claimed that because the first clause of the same section prescribes the punishment of “ any man who commits fornication with a single woman,” and, under our statutes, unlawful sexual intercourse with a married woman is adultery and not fornication, the second count as originally drawn stated no offense whatever, and therefore was not subject to amendment by inserting the word “ single ” before the word “ female,” as indicated in the foregoing statement. The second count, as originally drawn, may have been defective, but under the statute cited and the decisions of this court it would have been good after verdict and hence cannot be regarded as a nullity (E. S. sec. 4669; Mints v. State, 58 Wis. 493; Heckman v. Swartz, 64 Wis. 48), especially as it is alleged that the female here in question was only fourteen years of age, and hence incapable of contracting marriage (E. S. sec. 2329). Of course, all the strict rules applicable to the amendment of indictments found by the grand jury are not enforced against amendments to informa-tions filed by a district attorney. The statutes permit considerable flexibility as to the form of an information. E. S. secs. 4657, 4658. Our statutes expressly authorize the trial court to allow amendment of an indictment or information in case of variance between the statement therein and the proof in the “ description of any person,” 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. secs. 4703-4706. The last of these sections provides that “ no indictment, information, process, return or other proceedings in a criminal case . . . shall be abated, quashed or reversed for any error or mistake where the person and the case may be rightly understood by the court, and the eourt may, on motion, order an amendment eu/ring such defeats.” See, also, R. S. sec. 4659. Under the statutes and adjudications cited, we have no doubt of the power of the trial court, on motion of the district attorney, to amend the second count of the information as indicated. Hints v. State, 58 Wis. 493; Heckman v. Swartz, 64 Wis. 48; Baker v. State, 8S Wis. 155. The court has gone further and held that such amendment might have been made by the trial court upon its own motion. State v. Jenkins, 60 Wis. 599.

2. Error is assigned because the court refused to hold that the information was bad on the ground that it improperly joined a count charging the crime of rape with another count charging the offense of fornication. In the recent case of Porath v. State, 90 Wis. 527, the accused was tried upon two counts in the information,— one for rape upon his thirteen year old daughter, and the other for incest committed with her at the same date; and it was there contended, as it is here, that the two counts were improperly united. But this court, after very careful consideration, held that the two counts were properly joined. Mr. Justice Pinney, speaking for the court, carefully and at length considered the statutes applicable, and the decisions of this and other courts upon the subject. The only difference between the question thus determined in that case and the one here presented is that in that case one of the counts was for incest, while here one of the counts is for fornication. But the question thus presented in each case is in principle the same, and hence the decision in that case determines the question presented in this case. We perceive no good reason for changing onr judgment. See, also, Ingraham v. U. S. 155 U. S. 434. It follows that the court properly refused to quash the information, and properly overruled the demurrer to the same on the ground stated.

3. For the same reason the court properly refused to compel the district attorney to elect upon which count he would try the accused. Martin v. State, 19 Wis. 165. See, also, Pointer v. U. S. 151 U. S. 396.

4. Exception is taken because the court refused to allow a jury trial of the issue made by the district attorney’s answer to the plea in abatement put in by the accused. That plea in abatement is to the effect that the accused had not had “ a preliminary examination, as provided by law, before a justice of the peace or other magistrate.” Such want of preliminary examination is claimed on the ground that when the accused presented to Justice Pitts, before whom he was first brought, his application for a change of venue on the ground of the prejudice of the justice, that justice should have sent the case to some justice or magistrate other than Justice White, to whom he did send it; and the only question sought to be tried upon such plea and answer was whether the case was in fact properly sent to Justice White. The statute made it the duty of Justice Pitts upon such application to “ transmit all the papers in the case to the nearest justice or other magistrate, qualified ly law to conduct the examination, who shall proceed with the examination in the same manner as though said defendant had first been brought before him.” E. S.' sec. 4809. It is contended that the issue thus joined was ah issue of fact to be tried by a jury, as prescribed by sec. 4681, E. S. If that were really so, there would be very much force in the argument. As in effect stated by Mr. Justice Wiuslow in Balter v. State, 80 Wis. 419, “ it clearly appears, inferentially from the plea, itself and directly from the statements of the bill of exceptions,” that the contention of the plaintiff in error that he “ had received no preliminary examination was, in effect, a legal conclusion, based upon the supposed fact ” that Mr. White was not “ the nearest justice or other magistrate qualified by law to conduct the examination.” The question whether Mr. White was such nearest justice or other magistrate was one of law, to be summarily determined by Justice Pitts; and his determination was conclusive upon all parties, and hence was not open for retrial by Justice White nor in the circuit court. This has been repeatedly held by this court. State ex rel. De Puy v. Evans, 88 Wis. 260, 261; State v. Sorenson, 84 Wis. 31; Martin v. State, 19 Wis. 113. That he made such determination, and so transmitted the papers to Justice White, is manifest from the papers and records in evidence in the trial court. It appears from the transcript delivered to Justice White that upon the affidavit of prejudice being filed, “ asking for a change of venue,” Justice Pitts immediately made a transcript of his docket. The docket of Justice Pitts contained, among other things, this entry: “ Further proceedings in this case were by the court removed to Justice of the Peace A. S. White.” True, it appeared from oral testimony that these words were not written in the docket until Justice Pitts had in person delivered the transcript mentioned and the papers in the case to Justice White; but such entry was in fact made, and it conforms to what must have been determined by Justice Pitts before making the entry. Such delivery of the papers was simply the execution of such determination. We do not understand that Justice Pitts, as a mere committing magistrate, was obliged to make all the docket entries he would have been required to make if he had had jurisdiction to hear, try, and determine. R. S. secs. 4115-4816; State ex rel. Brown:v. Stewart, 60 Wis. 598; Messman v. Ihlenfeldt, 89 Wis. 585. But it does not follow that the question whether he in fact determined to do what he actually did do was to be submitted to Justice White for determination or to a jury for. determination in the circuit court. Whenever an answer to a plea in abatement raises an issue of fact which may be controverted by evidence dehors the record, then such issue is triable by jury. But whenever, as here, such issue is purely one of law, which has already been conclusively determined, then it is necessarily to be decided by the court. As the admission of parol testimony upon such issue did not prejudice the accused, his exceptions to the mode of trying the same must be overruled. Baker v. State, 80 Wis. 416. It is, in effect, admitted that the accused had a full and fair preliminary examination before Justice White; and there is nothing in the record to indicate that White did not have rightful jurisdiction.

o. The rule requiring the female, in case of rape, to immediately make complaint, is not inflexible. If circumstances reasonably cause delay, the effect is simply for the jury. It is at most a mere circumstance to corroborate the female as to the alleged force. 3 Rice, Ev. 827-829; Baccio v. People, 41 N. Y. 271; People v. Gage, 62 Mich. 274; Proper v. State, 85 Wis. 627. Here the female was of tender years. Her mother was in Chicago. The mere fact that testimony ivas admitted to the effect that the little girl made complaint to her cousin, seventeen days after the alleged assault, should not work a reversal — especially as the accused was acquitted of the rape and was only found guilty of fornication.

6. The court, in substance, gave to the jury all of the instructions requested by the accused and pertinent to the issue upon which he ivas convicted. The court certainly was not bound to instruct the jury as to the general policy of the law. The exceptions to the refusal of the court to give the instructions requested on the subject of rape are eliminated from the case by the verdict, which acquitted the accused of that charge. We perceive no error, in giving the instructions requested by the accused as to his credibility, for the court to add, in effect, that the jury should give to his testimony such weight as, under all the facts £,nd circumstances in evidence, they might believe it entitled to.

I. Exception is taken because the court charged the jury as follows: “ Consider the interest, if any, of the witnesses, the age of the defendant, and the age of the complaining witness; and if you agree with the defendant that this charge she makes against him is a pure fabrication, you ought at least to be able to find some motive for such a wicked fabrication.” It may be very questionable whether this can be sanctioned as stating a correct general principle of law. True, in Hannon v. State, 70 Wis. 455, the charge' of the trial Court contained substantially the same language, and the judgment was affirmed. In this case, as in that, the accused not only pleaded not guilty but under oath denied the whole charge. Commenting upon that and other portions of the charge in that case,' Mr. Justice Tayloe there said: “ A known motive for a course of action is always a powerful argument in favor of such action. The absence of any motive for its commission on the part of the person accused of a great crime is strong evidence of his innocence, and, in cases where the evidence is not positive and direct, is almost always sufficient to procure an acquittal. Certainly, it was not wrong to say to the jury : £ If, by your verdict, you say the complaining witness has committed perjury, you ■ ought to find, if you can, some motive for her perjury.’ ” Here the accused positively denied that he ever had any connection with the complaining witness at the time alleged or at any other time, and also positively denied he was alone with her at the time or place claimed, or that he was ever alone with her in his life. This being so, it is manifest that either he or the complaining witness committed deliberate perjury upon the trial. In considering which committed perjury and Avhich testified truthfully, the jury would necessarily consider the motive of each. In the Ilannon Case the trial court, in charging the jury, did saj., “ It is for you to say where the motive is.” The court repeatedly charged the jury, in effect, that they could not convict the accused unless they were convinced of his guilt beyond a reasonable doubt. While the portion of the charge here in question might, and probably would, under other circumstances, be misleading, still, under the facts and circumstances here presented, we do not think the jury could have been misled. The statute declares, in effect, that “ no judgment shall be reversed or affected by reason ” of any “ error or defect ” not affecting “ the substantial rights of the adverse party.” E. S. sec. 2829. The exception is overruled.

8. So wre must overrule the several ¿xceptions to the portions of the charge which read as follows: “ It is the duty of each juryman, while the jury are deliberating upon their verdict, to give careful consideration to the views his fellow jurymen may have to present upon the testimony in the case. He should not shut his ears, and stubbornly stand upon the position he first takes, regardless of what may be said by the other jurymen. It should be the object of all of you to arrive at a common conclusion, and to that end you should deliberate together Avith calmness. It is your duty to agree upon a verdict if that is possible.” These portions of the charge are justified by the rulings of this court in Odette v. /State, 90 Wis. 258, and cases there cited.

By the Oourt.— The judgment of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.