Glidden v. State

193 Wis. 595 | Wis. | 1927

The following opinion was filed June 20, 1927:

Rosenberry, J.

It is first urged that the testimony upon which the defendant was convicted was that of accomplices who admitted they had committed perjury and that a verdict based upon such evidence should not be permitted to stand. Upon this branch of the case we shall only say that we have carefully considered the evidence and that it is ample to sustain the conviction of the defendant. The evidence of the accomplices was corroborated at many points. Nor do we find anything in the record to substantiate the contention that the verdicts in the two cases were inconsistent or repugnant to each other. If the defendant had a legal trial the judgment of conviction should be sustained.

The principal question urged in the case is that in the Kilbourn case the defendant was by the verdict of the jury found guilty of an offense not charged in the information. The material part of the information is as follows: It charges that the defendant “did within the county of Columbia, state of Wisconsin, on the 20th day of July, 1925, unlawfully, wilfully and feloniously aid one Milton Kribbs, alias Arthur Bailey, in unlawfully, wilfully, and feloniously uttering, publishing, and passing as true to the Hoppe Clothing Store of Kilbourn, Wisconsin, one certain false and spurious instrument,” etc.; the instrument being set out in full, and it being further charged that the defendant well knew the same to be false and spurious and that he did act with intent to injure and defraud.

It is urged that the information charged the defendant with being an aider and abettor, not with being accessory before the fact. The distinction between an accessory before the fact and an aider and abettor is clearly pointed out in Krueger v. State, 171 Wis. 566, 579, 177 N. W. 917. While an aider and abettor is prosecuted as a principal under our statutes, an accessory before the fact must be still prosecuted as such. Karakutza v. State, 163 Wis. 293, 156 N. W. 965.

In this case if the amended information had read that the defendant “did within the county of Columbia, state of Wisconsin, on the 20th day of July, 1925, not being personally present, by counseling and advising, unlawfully, wil-fully, and feloniously aid Milton Kribbs,” etc., the information would have been sufficient. A careful examination of the record shows that the trial in fact proceeded on the part of the defendant as well as of the State on the theory that the first count in the information charged the defendant with being an accessory before the fact. Requests for instructions under the first count, which were appropriate if the first count charged the defendant with being an accessory before the fact and not appropriate if it charged him with aiding and abetting, were made by defendant’s counsel. The instructions given by the court under the first count were related wholly to the offense of being an accessory. There can be no doubt from an examination of the record that if the defect in the first count had been called to the attention of the court, an amendment would have been allowed at any time. The trial from beginning to end proceeded on the theory that the first count charged the defendant with being an accessory before the fact.

This situation clearly brings the case within the doctrine of Sprague v. State, 188 Wis. 432, 206 N. W. 69.

A considerable part of the brief of defendant’s counsel is devoted to the discussion of claimed prejudice of the trial court. It is claimed that by reason of a previously expressed opinion upon the merits of the case by the judge, the defendant could not have a fair trial. The record discloses that after all of the material facts were within the knowledge of the defendant’s attorney, he expressed his confidence in the court and signified his willingness to proceed with the trial. This fact taken in connection with the further fact that the record discloses that defendant had a full, fair, and free trial sufficiently disposes of this contention. Every objection and argument advanced on behalf of the defendant received the most careful consideration by the trial court and there is no basis whatever for any charge of bias or prejudice of the court.

It is further urged that the court should have sustained the plea in abatement on the ground that the offense charged in the information did not grow out of the transaction charged in the complaint upon which the warrant was issued which resulted in the arrest of the defendant and as to which the defendant waived a preliminary examination. This matter was treated in Thies v. State, 178 Wis. 98, 189 N. W. 539. But it is argued that the offense charged in the information does not grow out of the transaction charged in the complaint. It would be difficult to lay down a hard- and-fast rule. In this case, however, it appears from the evidence that had there been a preliminary examination upon the complaint on which the warrant was issued, every fact charged in each count of the information would have been disclosed. The traveler’s check which was in fact uttered by Kribbs at Kilbourn as well as the one uttered at Columbus were out of the lot of checks, the unlawful possession of which was charged against the defendant in the complaint. Evidence, therefore, as to what checks the defendant had in his possession on the 19th and 20th days of July, how and where he disposed of them, and what in fact became of them, was material and relevant in support of the charge made in the complaint.

Under all the facts and circumstances of this case it must be held that the several offenses charged grew out of or were related to the transaction charged in the complaint. Other errors are assigned which have been considered, but we shall not discuss them.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, without costs, on October 11, 1927.