Gundlach v. State

Jones, J.

Thеre is considerable force in the argument of defendant’s counsel that there was not sufficient evidence to establish the guilt of defendant beyond a reasonable doubt. The two principal witnesses for the State were Mr. and Mrs. Martin. The defense produced more than the usual number of character witnesses who swore that the reputation for truth and veracity of these two witnesses was bad and that they would not believe them under oath.

It was an unusual feature of this testimony that one of the character witnesses was the father, two were sisters, and another a brother-in-law of one of the witnesses. According to the homely old provеrb “Blood is thicker than water,” and although relatives often bring their quarrels into court, it seldom happens that those so closely related by blood as in this case will appear against each other as chаracter witnesses when they have no financial interest in the litigation.

As to these two principal witnesses there was testimony of numerous witnesses who swore to statements made before the trial wholly inconsistent with their tеstimony. There was such impeachment of their testimony that it would not have been surprising if the jury had found the defendant not guilty.

In cases of this character the testimony is generally for the most part circumstantial. In this case it wаs both circumstantial and direct. There was evidently every opportunity'for the defendants to have illicit intercourse, and if any credit is to be given to the testimony of Mr. and Mrs. Martin there was the adulterous disposition. It is apparent from all the testimony that none of these four persons had a very high standard of morals and that none of them paid much attention to public opinion.

There is one portion of the testimony of Mrs. Beaver of some significance which the jury may not have credited. It was' undisputed that her husband abandoned her about the time when the illicit relations between her and Gundlach are claimed to have commenced. She swore that about the middle of September her husband returned, visited with her for about an hour, and that they had sexual intercourse. So far as appears this was their only meeting for many months. On ‍‌​​‌‌‌‌​​​​‌‌‌​​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​​​​‍June 23, 1923, a child was born to Mrs. Beaver which she gave her own maiden name. If sexual intercourse took place as she testified, her husband might have been the father of the child. If not, the defendant might have been its father.

It was of course within the provincе of the jury, who heard and saw the witnesses and noted their demeanor, to weigh the testimony, including that which related to impeachment, and we do not feel justified in setting aside their verdict which was sustained by the trial court.

We аre now confronted with the question of law whether, the court properly refused to discharge the defendant Gund-lach because the case was dismissed as to the other defendant. Defendant’s counsel rely upon thе following statute:

“Any person who shall commit the crime of adultery shall be punished by imprisonment in the state prison not more than three years nor less than one year, or by fine not exceeding one thousand dollars nor less than two hundred dollars; and when the crime is committed between a married woman and a man who is unmarried both shall be deemed guilty of adultery and each shall be punished therefor.” Sec. 4576, Stats.

They argue that jeopardy had attached to Mrs. Beaver; that adultery is the joint offense of both the participating parties, and if one is acquitted the other must be discharged. Counsel cite numerous cases, some of which have little bearing on the subject, but others tend to support their claim. Two of these cases are Baumer v. State, 49 Ind. 544, and State v. Bain, 112 Ind. 335, 14 N. E. 232.

In People v. Munroe, 190 N. Y. 435, 83 N. E. 476, the offense was robbery, where it was charged that the principal was aided by an accomplice actuаlly present. It was held that where the accomplice was ‍‌​​‌‌‌‌​​​​‌‌‌​​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​​​​‍acquitted the principal must also be acquitted, because the evidence was the same and they were both engaged in the robbery or neither of them was.

In Delany v. People, 10 Mich. 241, the offense charged was lewd and lascivious cohabitation, and it was held that under the statute the offense was joint, of which both parties must be guilty or neither, and that both must be joined as defendants in the samе indictment unless one of the parties be dead or unknown. But it is held that under some circumstances one might be guilty of adultery while the other was not.

But we are of the opinion that the weight of authority-supports the view that, whеn two are indicted for adultery, the discharge of one defendant does not necessarily compel the acquittal of the other. In Comm. v. Thompson, 99 Mass. 444, the woman charged with adultery had made an admission that she was married. The сourt held that the admission was not binding on the other defendant, and as to him dismissed the case, but, as there was proof sufficient to sustain the judgment against the woman, judgment must be entered upon the verdict against her.

In Solomon v. State, 39 Tex. Crim. Rep. 140, 45 S. W. 706, after the tеstimony was closed, counsel for the state asked permission to dismiss the case against the woman. The other defendant objected because jeopardy had attached to his codefendant. It was hеld that the acquittal of one of the parties to the adultery does not bar the conviction as to the other, citing Alonzo v. State, 15 Tex. App. 378.

In State v. Caldwell, 67 Tenn. 576, defendant and a woman were jointly indicted for notorious lewdness. The parties severed fоr trial and the woman was acquitted. A plea was filed in bar to the further prosecution on the ground that the acquittal of the woman was equivalent to an acquittal of the man, as the offense could only be cоmmitted by two persons. It was held that the acquittal of one could not show that the other was not guilty.

In State v. Simpson, 133 N. C. 676, 45 S. E. 567, it was held, overruling former cases, that in a prosecution for fornication and adultery one defendant might be conviсted and the other acquitted.

In State v. Carroll, 30 S. C. 85, 8 S. E. 433, in a trial for adultery, appellant objected to being tried in the absence of his codefendant, ‍‌​​‌‌‌‌​​​​‌‌‌​​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​​​​‍the offense being joint and the two being jointly indicted. The court said (p. 89):

“Certainly the fаct that these two parties were jointly indicted is not sufficient to forbid the trial of one without the presence of the other; for this would lead to the extraordinary (not to use any harsher term) result, that, where two or mоre persons commit any crime, however atrocious it may be, for which they are jointly indicted, the escape of one by eluding arrest affords absolute immunity to all the rest. The books, however, are full of cases which show that the law is not subject to such a reproach.”

In State v. Ellis, 74 Mo. 385, it was held that on a charge of incest one defendant might be convicted.

There are numerous cases in which it is held that where violence has been used upon a woman, or where she was insane, or drunk, or under some misapprehension as to the existence of the marriage relation, one may be acquitted and the other convicted. These rеst upon the view that, while the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. State v. Sanders, 30 Iowa, 582; State v. Donovan, 61 Iowa, 278, 16 N. W. 130; State v. Eggleston, 45 Oreg. 346, 77 Pac. 738.

The rule that the discharge of one defendant chargеd with adultery does not necessarily require the acquittal of the other is supported by other authorities. 3 Wharton, Crim. Law (11th ed.) § 2084; 2 Corp. Jur. 15; U. S. v. Topino, 35 Philippine Rep. 901; U. S. v. Feliciano, 36 Philippine Rep. 753.

The exact question here involved has never been decided by this court. In Vought v. State, 135 Wis. 6, 114 N. W. 518, 646, there was а charge of larceny against several defendants in which it was shown that all had participated in a fraudulent scheme. Two of the defendants were acquitted and two convicted. It was urged by the appellаnt that under the' evidence ‍‌​​‌‌‌‌​​​​‌‌‌​​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​​​​‍the offense could not have been committed unless tlie others were equally guilty, and that he was exonerated by their acquittal. Among other cases cited in the opinion of the cоurt were the Texas cases above cited. The conviction was sustained.

In State v. Lloyd; 152 Wis. 24, 139 N. W. 514, it was held that, although it requires two or more persons to commit the offense of conspiracy, one of them may be tried and prosеcuted alone for the offense.

In the case at bar it appeared to the district attorney and the court that when the motion for the discharge of Mrs. Beaver was made there was insufficient evidencе to sustain the charge against her, and the case was dismissed. Whether this dismissal was proper under the circumstances it is unnecessary to decide. As the case progressed, the evidence of her marriage wаs produced and the jury and court were satisfied that the guilt of Gundlach was established beyond a reasonable doubt. However illogical it may seem that under such circumstances one of the defendants should escaрe and the other be convicted, there seems little reason for complaint by one who is guilty in fact, and the weight of authority seems to sustain that view.

Counsel for defendant urge that the State should have been requirеd to elect the specific act on which it relied for conviction. On this proposition several cases are cited, among which are two decisions of this court in which rape was the offense charged, and in the third the offense was the unlawful sale of liquor. In the present case the information charged that the offense was committed on September 25, 1922. According to the evidence produced by the Statе, Gundlach and Mrs. Beaver were occupying the same bed, beginning July 1st, and for several months afterward, including September. It is well settled that where adultery is the offense charged it is relevant' to show acts of adultery or undue familiаrity between the same persons to show their adulterous'disposition. 1 Ruling Case Law, 646; 2 Corp. Jur. 23, 24; Baker v. U. S. 1 Pin. 641; Comm. v. Nichols, 114 Mass. 285.

In this case the jury probably believed that there was a continuous adulterous relationship during several months, including the time when the offense was charged to have been committed. Under such circumstances the prosecution was not bound to elect as to- the ‍‌​​‌‌‌‌​​​​‌‌‌​​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​​​​‍act relied on. 2 Corp. Jur. 28; State v. Higgins, 121 Iowa, 19, 95 N. W. 244; State v. Hasty, 121 Iowa, 507, 96 N. W. 1115.

We think the court observed this rule in his charge to the jury which is excepted to. The jury were told that before they could convict they must all be convinced beyond a reasonable doubt that the act was committed at the place alleged at some particular time between July 1st and September 25th; that it was not sufficient that some of them might be convinced that the act of adultery was committed at one time and the others that he committed the act at some other time. There are many exceptions to the instructions given by the court. The only important exceptions raise in various forms, and in detail, objections relating to the two main legal questions which we have discussed and therefore do not call for further consideration. We conclude that there is no sufficient ground for reversing the judgment.

By the Court. — Judgment affirmed.

Case Details

Case Name: Gundlach v. State

Court Name: Wisconsin Supreme Court

Date Published: May 6, 1924

Citation: 198 N.W. 742

Court Abbreviation: Wis.