Allen v. State, 85 Wis. 22

Allen v. State

85 Wis. 22 | Wis. | 1893

WiNslow, J.

An information charging that the defendant “did wilfully, feloniously, and of bis malice aforethought kill and murder tbe deceased,” ^sufficient, under sec. 4660, R. S., and under it tbe defendant may properly be convicted of murder in either tbe first, second, or third degree. But a general verdict of guilty upon such an information does not authorize tbe court to pronounce judgment, because the degree of the crime is not determined. These propositions must be considered as settled in this-court. Hogan v. State, 30 Wis. 428; State ex rel. Welch v. Sloan, 65 Wis. 647. Such being the law, it is evident that the plaintiff in error could not have been legally sentenced under the verdict as it stood when first rendered by tbe jury, and when they were discharged. The question, then, is, Could such defective verdict be afterwards corrected, either by the court itself or by re-assembling the jury and ascertaining from them what degree of murder they intended to find? We have been referred to no authority *25which answers this question affirmatively with reference to a criminal, much less a capital, case; nor do we'see how such a doctrine could be justified. The authorities are numerous to the contrary. Comm. v. Townsend, 5 Allen,. 216; Cook v. State, 60 Ala. 39; Williams v. State, 44 Ill. 478.

The conviction and sentence must be founded upon the verdict- of the jury, not the verdict of the court. The jury ceased to be the jury in the case as soon as they were discharged by the court, and consequently could not after-wards add anything to or subtract anything from the verdict. Therefore the judgment here was based on a verdict in which one essential fact was not found by the jury, and which the court had no power to find.

Eor some reason not apparent to us the word “ wilfully ” is omitted from the information in this case. This is one of the few technical words which the statute (sec. 4660, R. S.) retains, and seems to indicate as necessary in an information for murder. What effect this omission might have even were the verdict complete, was not discussed and is not necessary to be decided, but we deem it proper to call attention to the omission.

By the Court.— Judgment reversed, and cause remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Clark county, who will hold him in custody until he shall be discharged by due course of law.