Casper v. State, 47 Wis. 535

Etak, C. J.

Thеre certainly was evidence, upon the trial of the plaintiff in error, tending to support the verdict, and appearing to have satisfied the jury beyond a reasonable doubt. There is no such want or preponderance of evidence ■against the finding as would warrant this court to set aside .the verdict, or to hold that the learned judge of the court below, who heard the evidence and could judge of its credibility better than this court, erred in overruling the motion for a new trial. More it would hardly be proper to say here, as the codefendants of the plaintiff in error are yet to be tried.

The bill of exceptions does not contain the charge of the court below, and the presumption is that the learned judge before whom the case was tried gave correct instructions to the jury, as was his duty, on all questions of law involved in the issue. Brabbitts v. Railway Co., 88 Wis., 289. The рresumption is the stronger in this case because it appears that the charge consisted wholly of instructions drawn by the counsel for the рlaintiff in error. The jury should have been told, and the presumption is that they ‍‌​​​​​‌‌​​‌‌​​‌​​‌‌​‌‌‌​​​​​‌‌‌​‌​​​​​‌‌‌‌‌‌‌​‌‌‍were told, that they could not convict the plaintiff in error unless satisfied of his guilt beyond a reasonable doubt. Therefore is it said that the evidence appears to have satisfied the jury beyond a reasonable doubt.

It appears that all the instructions prayed for the plaintiff in error were given to the jury, except one erroneous prоposition presently noticed. It is, however, assigned for error, that the learned judge of the court below failed in his duty to instruct the jury, becausе he gave no separate instructions of his own. As already seen, the presumption is that the instructions given were full and correct; and when counsel sees fit to draw and submit the entire charge applicable to a case, and it is adopted and given by the court, it is not true in fact that the court fails to charge the jury. ■ Instructions prayed, before given, are the instructions of counsel; when given, are the charge of thе court.

The statute requires the clerk of the municipal court to pay periodically, at fixed times, into the treasury of the city, unpaid witnesses’ fees received by him. After these fees come into the treasury of the city, they are payable by the city to the witnesses to whom they are primarily due, the city becoming their debtor for the amount. If not reclaimed by the witnesses, the fees remain the money of the city. In the mеanwhile the city, from the time they are payable to its treasury, has, to say the least, a special property in them, and could, doubtlеss, maintain an action against the clerk for them. As against the clerk, therefore, the city might be held to have the general property in them. Rut a special property is sufficient to support the averment of the information of property in the city. 2 Archbold, 1153-1162.

The instruction prаyed by the plaintiff in error, which was not given, ‍‌​​​​​‌‌​​‌‌​​‌​​‌‌​‌‌‌​​​​​‌‌‌​‌​​​​​‌‌‌‌‌‌‌​‌‌‍was in conflict with this view, and was therefore properly refused.

The plaintiff in error, as clerk of the muniсipal court, appears to have officially received the fine mentioned in the fourth count of the information, as a fine impоsed by the court, and he cannot now be heard to question the validity of the fine or his official duty in respect of it. Bullwinkel v. Guttenberg, 17 Wis., 583; Cairns v. O'Bleness, 40 Wis., 469.

Although the practice may work inconvenience, and even difficulty, separate trials may be had upon indictment or information for conspiracy. Thodie's Case, 1 Ventris, 234; S. C., 3 Neb., 111, 117; Rex v. Kinnersley, 1 Strange, 193; Rex v. Niccolls, 2 Strange, 1227; S. C., 13 East, 412; Rex v. Scott, 3 Burr., 1262; The King v. Cooke, 5 Barn. & Cres., 538; The Queen v. Kenrick, 5 Adol. & Ellis, 49; Reg. v. Ahearne, 6 Cox C. C., 6; People v. Olcott, 2 Johns. Cas., 301; State v. Buchanan, 5 Harris & J., 317, 500. The only case referred to by counsel, ‍‌​​​​​‌‌​​‌‌​​‌​​‌‌​‌‌‌​​​​​‌‌‌​‌​​​​​‌‌‌‌‌‌‌​‌‌‍or found, which holds otherwise, is Commonwealth v. Manson, 2 Ashmead, 31. The opinion in that case cites no authority against separate trials, and, however respectable, cannot overcome the uniform rule of decision for some two hundred years.

Informations for conspiracy are therefore within sections 4680 and 4685, K. S. The latter section is an anomaly. Rupp v. Swineford, 40 Vis., 28. But courts must administer the statute as they find it, and when the venue is changed for some only of the defendants in indictment ‍‌​​​​​‌‌​​‌‌​​‌​​‌‌​‌‌‌​​​​​‌‌‌​‌​​​​​‌‌‌‌‌‌‌​‌‌‍or information for conspiracy, separate trials must be had. The plaintiff in error was, thеrefore, properly tried alone in the municipal court.

Several of the English cases cited supra hold that where one only is found guilty of conspiracy, his codefendants not bеing tried, judgment should go against him. "When a prisoner is alone indicted for a conspiracy with others unknown, or when he is indicted with others who cannot bе taken or brought to trial, there appears to be no valid objection to that practice; for the verdict against him is that he was guilty with others who cannot be brought to trial, and there is no presumption in his favor of their innocence. But where several are prosecutеd together, taken, and may be brought to trial, for conspiracy, and, their trial being severed, one only has been tried and found guilty, there is manifest impropriety in proceeding to judgment against him before the trial of his codefendants.- The verdict against him would raise no presumption against them, and their acquittal would be inconsistent with his conviction, and should operate in law to acquit him also. Judgment against him, in such case, would not only be a cruel injustice, but an absurdity, which the law ought not to sanction; for one only cannot be guilty of conspiracy, and judgment against one, upon acquittal of those charged with him, would be not only a wrong to the person, but a blunder in law.

If this judgment were now to be affirmed, and the code-fendants of the plaintiff in error should hereafter be acquitted, both the court below and this court would be apparently powerless to rеlieve him against the wrong of the judgment. ITe would apparently have no relief except by pardon, which is always discretionary. Such an аdministration of the criminal law would be essentially dangerous, and inconsistent with the conclusive presumption of verity of judgments. This court adopts а rule more just and-humane in itself, and more in ‍‌​​​​​‌‌​​‌‌​​‌​​‌‌​‌‌‌​​​​​‌‌‌​‌​​​​​‌‌‌‌‌‌‌​‌‌‍accord with the principles underlying all judicial administration. When several are prosecuted tоgether for crime, which one, or other limited number only, cannot commit, like conspiracy or riot, and are taken and may be brought to triаl, and on separate trials verdicts go against a number incapable in law of committing the crime, judgment against those found guilty should be suspendеd until the number necessary to the crime are convicted. Failing that, those against whom verdicts have been found should be discharged. When verdiсts are found against the number necessary to the crime, then judgment should go against them. If they have been tried in different courts, transcripts of so much of the record as may be necessary to show the verdict in the case of each defendant should be transmitted from one court tо the other.

On this ground the judgment here must be reversed as premature; but the verdict will stand pending the prosecution of the other defendants. In the mеantime the plaintiff in error should be held in custody, or under recognizance from term to term of the court below, to receive judgment on the verdict.

By the Court. —The judgment is reversed, and the record remanded to the court below for further proceedings in accordance with this opinion.

Case Details

Case Name: Casper v. State

Court Name: Wisconsin Supreme Court

Date Published: Aug 15, 1879

Citation: 47 Wis. 535

Court Abbreviation: Wis.