215 Wis. 141 | Wis. | 1934
The first contention of defendant is that there was not sufficient competent evidence to warrant his conviction. This requires a consideration of the facts.
July 3, 1933, John Davidson, a truck farmer, residing in the city of Berlin, Wisconsin, was assaulted in his barn
There is no merit to the contention that this evidence does not sustain the conviction. It is true it is countered by fiat denials on the part of Alto covering every detail of the testimony, and that there is evidence tending to establish an alibi. This presents a conflict, which the jury has resolved against defendant, and this court cannot disturb the jury’s conclusion that Alto committed the acts alleged to
The information charges that defendant, on July 1, 1933, counseled, hired, and procured Turner and Zabralski to make an assault to rob upon Davidson; that Turner and Zabral-ski, on July 3d, being armed with damgerous weapons, wil-fully made such an assault upon Davidson, “pursuant to and in furtherance of said counseling, hiring, and procuring.” Defendant contends that the crime charged by the information against defendant was the hiring and procuring of two others to commit an assault upon and rob Davidson; that the second part of the information merely recites the carrying out of the plan, gratuitously adding the phrase, “being armed with dangerous weapons.” The information, fairly construed, does not sustain this contention. The information adequately charges, and was plainly intended to charge, defendant with being an accessory before the fact to the crime of assault to rob, being armed with dangerous weapons. It charges this by alleging the hiring, procuring, and counseling by defendant of two others to rob, and that, acting upon this counseling and hiring, the two did commit a robbery, being armed with dangerous weapons. In Reg. v. Bernard, 1 Fost. & F. 240, Lord Campbell, C. J., said:
“If A. advised B. to rob C., and in robbing him B. kills him, either upon resistance made, or to conceal the fact; or if A. solicit B. to burn the house of C., and B. does it accordingly, and the flames taking hold of the house of D., that likewise is burnt; in these cases A. is accessory to B., both in the murder of C. and in the burning of the house of D.; the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under the influence and at the instigation of A. The approved test is, Was the*145 event alleged to be the crime to which the accused is charged to be accessory a probable consequence of the act which he counseled?”
Thus, taking the information in the most favorable light to defendant, it charges him with being accessory to the crime of assault to rob, being armed with dangerous weapons. There can be no serious question as to the crime of which the jury intended to and did find defendant guilty, when it is further considered that the trial court instructed the jury that to convict defendant it was necessary for them to be satisfied from the evidence that Turner and Zabralski made an assault on July 3d, with intent to rob, being armed with dangerous weapons, in furtherance of plans made on July 1st.
The next assignment of error is that defendant’s cocon-spirators, while at Fond du Lac and before seeing or knowing defendant, conceived and discussed the plans for committing the robbery, and that they were permitted to testify to all of their conversations-and plans made at Fond du Lac, at the Davidson place, and elsewhere, when defendant was not present. We find it unnecessary to consider this assignment of error for the reason that the record discloses that this testimony all came in over the objection of the prosecuting attorney, upon cross-examination of the coconspirators by defendant’s counsel. Under these circumstances it cannot be held to be prejudicial error, and no further examination into the merits of the contention will be made.
The next assignment of error is based upon the fact that the defendant was forced to trial some seventeen days after the crime was committed, and the case tried in an atmosphere that made a fair trial impossible. This court cannot say as a matter of law that the trial court abused its discretion in setting the trial when it did. So far as the opportunity to prepare for trial is .concerned, there is nothing in the record to. warrant disturbing the trial court’s conclusion that
In Krueger v. State, 171 Wis. 566, 177 N. W. 917, it was said:
“Just as the trial judge is in a better position to weigh the testimony of witnesses who appear before him, so is he in a better position to judge of the public sentiment of the county. He is on the ground and in a position to sense, in a way that this court cannot, the true sentiment of the community and to judge much more correctly whether it is such as to prevent a fair trial on the part of the defendants.”
In the present state of the record, and in the light of this opinion, we find no prejudicial error.
The next contention is that the district attorney was guilty of suppressing evidence. Harry Erdmann testified upon the trial to defendant’s guilty part in the robbery. On cross-examination he admitted that he had theretofore made a statement to the district attorney and that this statement completely exonerated defendant. He stated that the district attorney took this paper away with him. Counsel for defendant then demanded of the district attorney production of this paper. The district attorney declined to produce the writing, although he concededly had it. The refusal to produce was sustained by the court. The refusal of the district attorney to produce the paper was not warranted,
It is further assigned as error that the district attorney asked the defendant the following questions:
“Do you know that your saloon building was under constant watch by the prohibition agents?
“Did you always see that the place was run in a law-abiding manner?”
The questions were improper. However, the* court promptly sustained objections to them, and immediately warned the jury to entirely disregard the questions in the consideration of the case. Since it was already properly in evidence that defendant had been convicted of a crime-involving violation of the prohibition law, it is to be doubted whether these questions could have' operated to his prejudice. In any event this court, in reviewing the record, cannot say that the prejudicial character of the questions affirmatively appears. These considerations, taken in connection with the fact that objections were sustained to the questions and the jury promptly and explicitly admonished to disregard them, renders the contention that prejudicial error was committed untenable.
Numerous other errors have been assigned, but we feel that no useful service will be performed by a detailed discussion of them. They have been carefully examined and we find no error.
By the Court. — Judgment affirmed.