Hanley v. State

125 Wis. 396 | Wis. | 1905

SiebeckeR, J.

It is contended that the plaintiffs in error were entitled to a change of the place of trial on account of the prejudice of the people of Milwaukee county. The statute (sec. 4619, Stats. 1898) provides that the trial of criminal cases is to be had in the county where the offense is committed, except in cases especially provided for, unless it shall be made to appear to the court by affidavit that a fair and impartial tidal cannot be had in such county, and upon such a showing, “if the offense charged in the indictment or information be punishable by imprisonment in the state prison,”" the court may change the venue to an adjoining county. The statute in terms prescribes that the place of trial in all cases shall be in the county where the offense is committed, and that the court wherein the action is pending shall have power to change the- place of trial in cases wherein the offense charged in the information or indictment is punishable by imprisonment in the state prison. In Boldt v. State, 72 Wis. 7, 38 N. W. 177, a prosecution on complaint for a misdemeanor, the statutes providing for a change of venue were under consideration, and the court there stated:

“The right to a change of venue is purely statutory (Baker v. State, 56 Wis. 573, 14 N. W. 718), and it is clear that this case is not within the letter of the statute. But it is said to-, be within its spirit, and that the words ‘indictment’ and ‘information’ are used in the section as descriptive of all cases-of criminal prosecution of every kind, and include an appeal in a criminal case from a justice of the peace as well as one on information filed in the circuit court. We do not feel justified in giving the language such a construction. The language is very plain, and it is evident from the whole chapter that the legislature was regulating criminal prosecutions in. the circuit court by indictment or information. To say that the provision applied to an appeal from a justice in a criminal case would he amending the statute, and pure legislation.”

This interpretation of the statute appears to accord with, the intention of the legislature expressed in the context and is decisive of the question presented here. The defendants are not on trial upon indictment or information for an offense punishable by imprisonment in the state prison and therefore had no right to a change of the place of trial.

It is claimed that the complaint should have been dismissed, as requested by defendants, for the reason that it is -insufficient, indefinite, and uncertain. The complaint is lodged under sec. 4550, Stats. 1898, under which any officer, agent, or clerk of the state or of any county, town, etc., or in the employment thereof, who “shall be guilty of any wilful extortion, wrong or oppression therein, shall be” subject to punishment as therein provided. The claim is made that .the complaint fails to charge, in reference to the alleged extortion, the amount due, if any, and that it was demanded as compensation for some official, duty for which a fee is prescribed, and that the demand was made and the money extorted for a. fee to which the defendants were not entitled. Under this statute the offenses of extortion and oppression as they existed at common law are to be punished as therein prescribed. We must therefore look, to the common law to ascertain what constitutes these offenses. The common-law offense of extortion is said “to be an abuse of public justice, which consists in any officer’s unlawfully taking by-color of his office, from any man, any money- or thing of value that is not due him, or more than is due him, or before it is due.” Bl. Comm, book 4, 141; Comm. v. Mitchell, 3 Bush, 25. The offense is a wrongful taking, by color' of office, when nothing is due, as well as where more is demanded than is due, or where it is not yet due. In charging the offense at common law it is held that no averment is required to charge the wrongful talcing as a fee, or that it was to the officer’s own tise. People v. Whaley, 6 Cow. 661; Wharton, Crim. Law (10th ed.) § 1579. The cases brought to our attention from Massachusetts and Indiana as holding to a different rule of pleading refer to prosecutions for statutory offenses, and it is therefore held that the offenses must be charged as defined in the statute. In State v. Oden, 10 Ind. App. 136, 37 N. E. 731, the court, speaking of this distinction, observed:

“The distinction was clearly made in Massachusetts, where it is held that, ‘to subject an officer to the penalty provided by the statute, it must be proved that the sum alleged to have been extorted was demanded as a fee for some official duty.’ Runnells v. Fletcher, 15 Mass. 525.”

It seems clear from the authorities that no such specific allegations are deemed necessary in a prosecution for the common-law offense. Applying this rule to the complaint, it is sufficiently definite in charging that the defendants, as constables, “did conspire and did extensively receive and take from the complainant, by color of their office, the sum of • seventy-five dollars in money” for discharging the warrant .then in their possession.

It is further contended that, since it is charged that they extorsively obtained this sum “as and for a fee due to them,” there is a fatal variance between this allegation and the proof, in that the evidence wholly fails to establish that it was demanded and obtained as a fee; that the proof is that the money was obtained from complainant for, and was paid to them in settlement of, the proceeding. From what we have stated, it is manifest that this allegation is wholly unnecessary in order to charge the offense of extortion as it exists in this state, and that under the rule that where a particular fact, which is not essentially descriptive of the offense or material to the jurisdiction, is made a part of an allegation, a discrepancy between the allegation and proof as to such part is not a material variance. It is immaterial whether the proof conforms to it or not. Bonneville v. State, 53 Wis. 680, 11 N. W. 421; Comm. v. Brailey, 134 Mass. 527; Comm. v. Luddy, 143 Mass. 563, 10 N. E. 448; Bradley v. Reynolds, 61 Conn. 271, 23 Atl. 928; State Bank v. Peel, 11 Ark. 750; Comm. v. Jarboe, 89 Ky. 143, 12 S. W. 138; State v. Fox, 25 N. J. Law, 566.

The irregularity complained of is not a material error under the statutes prescribing that in charging offenses it shall be sufficient if it can be understood therefrom who presents the charge, and if it give the name or description of the accused, the place where the offense was committed, and if the offense be alleged with such a degree of certainty that the ■court may, upon conviction, pronounce judgment according to the right of the case (sec. 465S, Stats. 1898), and that: “Ro indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceeding therein be affected [among other things] by reason of any . . . defect or imperfection in matters of form, which shall not tend to the ■prejudice of the defendant.” Sec. 4659, Stats. 1898.

Under the provisions of this legislation it is clear that, to constitute reversible error in matters of form, the defect or irregularity must have tended to the prejudice of the defendant. The immaterial statement of fact in the complaint, that defendants extorsively demanded and obtained the money as and for a fee, could in no way mislead or prejudice them in “their defense or thereby deprive them of any right. Cross v. State, 55 Wis. 261, 12 N. W. 425; Bonneville v. State, supra; Hintz v. State, 58 Wis. 493, 17 N. W. 639; Byam v. State, 17 Wis. 145; McCarney v. People, 83 N. Y. 408; People v. Johnson, 104 N. Y. 213, 10 N. E. 690; People v. Dimick, 107 N. Y. 13, 14 N. E. 178. Under the practice clearly established by these adjudications, it is obvious that the error complained of is within the class covered by these ¿statutes and by sec. 2829, Stats. 1898, which applies to criminal as well as to civil cases, and that this error should he disregarded upon the ground that it is only for errors depriving-a party of a substantial right that judgments may be reversed. Odette v. State, 90 Wis. 258, 62 N. W. 1054; Jackson v. State, 91 Wis. 253, 64 N. W. 838; Fischer v. State, 101 Wis. 23, 76 N. W. 594; Golonbieski v. State, 101 Wis. 333, 77 N. W. 189; Cornell v. State, 104 Wis. 527, 80 N. W. 745; Murphy v. State, 108 Wis. 111, 83 N. W. 1112; Lanphere v. State, 114 Wis. 193, 89 N. W. 128.

The contentions.that the defendants were prejudiced by the failure to instruct the jury, as requested, to the effect that no conviction of the offense charged would be justified unless-defendants claimed the sum alleged to have been extorted as and for compensation for services rendered by them as officers, 'is not well founded, under the rules above stated as. controlling this case. The charge given by the court sufficiently covered all the material issues submitted to the jury to inform them of the rules of law applicable to the facts and circumstances adduced by the evidence.

It is also claimed that the court erred in overruling defendants’ motion for their discharge for want of any evidence-tending to show them guilty of the offense. The evidence submitted warranted the inference that defendants united in a common purpose to secure the sum, as charged, from the complainant, by color of their office. The obtaining of money under such circumstances without authority and right is construed and comprehended in the law as an act wrongfully-done and grounded in corruption, and such acts amount to an official malfeasance in the nature of an extortion or oppression.

It is also urged that the court erred in refusing to discharge the defendants for the reason that the search-warrant under which they acted at the time in question was void for want of power in the justice to issue it. The prosecution for the offense charged relates to the wrongful conduct of defendants by color of office. There is no dispute in this case but that defendants were in fact constables at the time and assumed to be acting officially in performing constable duty. The gravamen of the charge is that by color of such office they wrongfully extorted money. Whether they acted by authority of a valid or invalid process is immaterial, since the jury found that money was extorted by color of their office. Comm. v. Saulsbury, 152 Pa. St. 554, 25 Atl. 610.

An exception is urged to the court’s ruling in permitting the defendant Hanley to be cross-examined. It appears that he had taken the stand and testified to the fact that he saw the receipt for the money paid the owners of the property for which the search-warrant issued signed by one of tire owners. The inquiries on his cross-examination have a bearing on and relation to this transaction and were therefore in the field covered by his direct examination. We find no error in the record.

By the Court. — Judgment affirmed.