Murphy v. State

57 N.W. 361, 86 Wis. 626, 1893 Wisc. LEXIS 217

• Court: Wisconsin Supreme Court
• Decided: December 29, 1893
• Status: Published

Opinion

LyoN, O. J.

1. Was it error to refuse to give the proposed instruction to the effect that the plaintiffs in error should not be convicted upon mere suspicion? The learned circuit judge instructed the jury that, to justify a conviction, “ no mere weight of evidence is sufficient unless it excludes all reasonable doubt (not unreasonable) as to the guilt of any of the defendants. The proof of guilt must be .inconsistent with any other rational supposition.” These rules were repeated and enforced in other portions of the charge. "We think the charge contains a correct statement -of the rules of evidence in criminal cases, and is the complete equivalent of the proposed instruction, for it is evi■dent that testimony which raises only a mere suspicion of guilt is not, and in the nature of things cannot be, inconsistent with any other rational hypothesis. A mere suspicion is such because there is some reasonable hypothesis against it. Besides, under the proof, there seems to have been no necessity for an express instruction that the jury must not convict on mere suspicion, for there is abundant -undisputed evidence in the case tending to prove the guilt of all the plaintiffs in error. This fact takes the case out of the -range of mere suspicion, and renders the question of innocence or guilt one of fair and proper inference from facts proved. "We conclude that the refusal to give the proposed instruction except as given in the general charge was not error.

2. "Was it error to instruct the jury that the finding of a part of the stolen property in possession of one of the plaintiffs in error was a circumstance to be considered by the jury, with all the other facts and circumstances proved in the case, in determining the guilt of the other plaintiffs in error? The argument, if we understand it correctly, is that it was incumbent on the prosecution to establish an existing conspiracy or confederacy between the plaintiffs in error to commit crime, before the fact that part of the stolen property was found on one of them could properly be received as evidence against the others. We understand this to be a correct statement of the rule of evidence. At .any rate, we assume it to be correct for the purposes of this case. The court did not submit to the jury the question of such conspiracy or confederacy between the plaintiffs in error. Hence it would seem that unless the same ■was conclusively proved on the trial the instruction under consideration was erroneous. The question is, therefore, Was the existence of such conspiracy or confederation conclusively proved?

When the offense charged in the information was committed, and immediately before and after that time, none of the plaintiffs in error had any visible means to maintain himself, and each of them was an idle person living without employment. Each was wandering about, and living in outhouses and barns, and in the open air, and failed to give a good account of himself. Each of them was, therefore, a vagrant, and vagrancy is a crime punishable by imprisonment. R. S. secs. 1543-1546. As such vagrants, they associated and confederated together to continue their criminal career., All.of them were adults, and in the execution of such criminal purpose they wandered together into the village of Kansasville, of which village none of them were residents, and none of them were called there on any lawful business or for any lawful purpose. Thus, they were tramps, as well as vagrants, and it is also a crime to be a tramp. S. & B. Ann. Stats, sec. 1547A These crimes they conspired and confederated together to commit. Acting together as confederates, they attempted to steal a passage on a railway train from Union Gfrove to Burlington without paying fare, and after boarding the train they refused to pay fare. This was an unlawful, if not a criminal, act, and they were joint trespassers on the train. After being ejected from the train at Kansasville they continued together their criminal career as vagrants and tramps until late at night, when they went to Mr. Collar’s place, and, when substantially together and acting in concert, three of them committed the crime of larceny by stealing Mr. Collar’s fowls. In the commission of this crime they are also chargeable as confederates. This brings the joint career of the plaintiffs in error down to within less than two. hours (probably within an hour) of the time Miller’s store was broken, entered, and robbed, and leaves them within eighty rods of the store. After the store was robbed they remained substantially together', wandering through the country to the west and southwest, until they were arrested the next evening in another county, and part of the property stolen from the store was found on one of them. When arrested they were sitting around a fire they had lighted close to'the railroad track. One of the party was armed with a revolver. The carrying of a revolver by a tramp, and probably the building of the fire, were also criminal offenses, made such by said sec. 154Id, subd. 4, in the commission of which all the plaintiffs in error were confederates.

The proof of most of the above facts is undisputed, and the proof of all of them is so overwhelming that the trial court was abundantly justified in regarding them as verities in the case. The crime charged in the information is oné against property. It requires no argument or citation of authorities to demonstrate that the evidence sufficiently establishes the conspiracy and confederacy between the plaintiffs in error to commit crimes of the same nature-during the night the offense- charged in the information was committed, and to justify the giving of the instruction under consideration, without submitting to the jury the question of the existence of such conspiracy and confederacy.

3. The remaining error assigned, which is to the effect that a new trial should have been granted for insufficiency of proof, is fully answered by what has already been said. We conclude that the testimony is sufficient to sustain the conviction of all the plaintiffs in error.

By the Court.— The judgment of the circuit court is affirmed.