Hughes v. State, 109 Wis. 397

Hughes v. State

109 Wis. 397 | Wis. | 1901

Winslow, J.

A claim is made on behalf of the plaintiff in error that the verdict is contrary to the law and the evidence, but we consider the claim so palpably unfounded that we shall not undertake to discuss it at length. It is sufficient to say that, in our judgment, there was ample evidence to sustain the verdict.

The specific errors claimed will be considered under three heads.

1. Errors in the selection and impaneling of the jury. Under this head a number of points are made. A juror named Sanow, when examined on the voir dire, stated that he lived about two blocks from the Barry saloon in October, 1899; that he knew something of the matter from reading about it in the papers, and from hearing some discussion of it, but had not formed an opinion, and thought he could try the case fairly. The juror was accepted, and the trial proceeded. During the progress of the trial, Mr. Vaughn, the prisoner’s attorney, informed the court that he had just been informed that Sanow was at Barry’s saloon soon after the shooting, and was very much excited and affected when he heard of it. Thereupon the court examined Sanow, and he testified that he was in the saloon shortly after the shooting, but did not learn anything in particular about the case, and formed no opinion. The ques*402tion whether he was in the saloon had not been put to him on the voir dire. The court then proceeded with the trial, Sanow remaining upon the jury. After the verdict, upon motion for a new trial, a number of affidavits of various persons were introduced tending to show, among other things, that Sanow was a frequenter of the house of ill fame where May Bolz lived, and that he knew and was intimate with her; that he had been heard to say, soon after the shooting, that the fellow who did it ought to be sent over the road; and that Sanow was in the wine room where the shooting took place fifteen or twenty minutes after-wards, and while the body of the deceased still lay on the floor. Sanow’s testimony was taken, in which he denied substantially all of the facts alleged except that he admitted that he was in the saloon building, but not in the wine room, and admitted that he had been twice in the house where deceased lived, but denied knowing her. The court concluded on this evidence that Sanow’s’testimony was true, and that he was a competent juror. Upon a state of facts quite similar, a like ruling was sustained by this court in the case of Schuster v. State, 80 Wis. 107. The same case also disposes of another exception as to the juror Sanow. He was asked on cross-examination what he'went to the sheriff’s room for after the verdict was rendered, and an objection to the question was sustained. As held in the Schuster Case, the verdict cannot be impeached by anything which the juror said or did after the verdict was rendered.

Another juror, named Healy, was objected to as incompetent because he had served on the regular panel of the superior court within the year, and because he stated that he had formed an opinion in the case. Heither of the points is well taken. Healy was summoned as a talesman, and the very section which disqualifies a person from serving as juryman twice within a year .excepts from the rule the case where a person is summoned as a talesman. Stats. 1898, *403sec. 2525. As to his knowledge of the case, h.e said he had read of it in the newspapers, and that, assuming the facts stated in the papers were true, he had formed an opinion which would require evidence to remove; that notwithstanding this, he thought he could dismiss the impression and stand perfectly fair to the accused upon the evidence. The situation is substantially the same as that presented in Balcer 'ü. State, 88 Wis. 140, and for the reason there stated we hold that no error was committed.

Several jurors were asked whether, in case of a reasonable doubt in their minds as to the guilt of the accused, they would give him the benefit of such doubt, and whether they would give the accused the benefit of such a doubt as quickly as if the accused were a highly respectable gentleman; also whether they would be prejudiced against the accused if it •developed that he was living with a woman not his wife, and whether they would follow their consciences or the judge’s instructions; and other similar questions were put, all of which the court finally ruled out. There was no error in these rulings. While the questions might, perhaps, have been properly allowed, because the trial court has a large discretion as to the selection of a jury (Sutton v. Fox, 55 Wis. 531), the ruling of the court in refusing to allow them was clearly not error. They were questions which practically asked the juryman what he would or would not do under a supposed state of facts, and such questions may properly be ruled out. Thompson, Trials, § 102.

Objection is made to the juror Eogers because it is said his examination showed that he was not a qualified elector ■of this state. As to this it is sufficient to say that, while the testimony showed that he was away from the state a large portion of the time, it also showed that the absences were temporary, and always with the intention of returning. Stats. 1898, sec. 69, subd. 2. He was an unmarried man, and boarded' at a hotel. It is true, that he stated that he *404bad no home here, but it is very evident that he meant by the word “ home ” a house or family residence. His other testimony showed him to have a legal residence here, and there was no error in allowing him to remain upon the jury.

• Objection is made because at one time during the impaneling of the jury only eleven unchallenged jurors were in the jury box, and at another time there were thirteen in the box. The accused was not required to challenge at either time,'nor were any proceedings had except that the examination of jurors was proceeded with, and, as soon as attention was called to the situation, the blunder was corrected. The true rule is that the full number of twelve unchallenged jurors should be in the box at all times while the jury are being examined. Lamb v. State, 36 Wis. 424. This rule is important, and should be strictly observed by trial courts; and, had the accused been required to challenge when there were' less or more than twelve unchallenged men in the box, it may be that a serious question would be presented; but when it affirmatively appears that he simply examined a juror without objection, and that the error was corrected, and the required number supplied, when attention was called to the matter, and he was not compelled to challenge or exercise any right in the absence of the proper number, it must be held that he suffered no prejudice, and he must be considered to have waived the objection. Flynn v. State, 91 Wis. 44.

2. As to the alleged dying declarations of Hay Bolz, which the court received against objection and exception. This declaration was shown to have been made on the afternoon of Sund'ay, October 8th — three days before her death — to one Lontz. It will be unnecessary to detail here the substance of the statement further than to say that it tended to show that the shooting was intentionaL on the part of the accused, because the deceased had told the accused that it was all off between them. It appears quite clearly from the *405evidence that the wound was so serious that there had been no hope of her recovery from the beginning. Before the declarations were received, there was evidence tending to show that the deceased on that day, and prior to mating the statement, apparently understood what she was talking about; that several persons conversed with her besides the witness Lontz on matters requiring the exercise of memory and intelligence, such as the disposing of her belongings and her burial, and that she gave intelligent and conscious answers; that, although at times she seemed to be in a kind of a stupor, still, when her mind was aroused she was intelligent. This testimony came not only from the witness Lontz, but also from at least three other witnesses, two of whom were physicians, who saw and conversed with her on that day. In addition to these facts, Lontz testified that she told him that she knew that she could not get well and could not live long. This, evidence was entirely sufficient as a foundation for the reception of the statement made. It tends to show that the statement was made while the deceased was intelligent and conscious, under the. sense of impending death, which in fact soon.took place. This satisfies the requirements of the law. Miller v. State, 25 Wis. 384; Richards v. State, 82 Wis. 112. The fact that other witnesses testified afterwards that she was delirious on Sunday, and did not know what she was doing, does not render the testimony inadmissible, but only affects the credibility of the statement.

3. The final objection made to the judgment is that the record does not show that the accused was present when the verdict was received, and hence, under the principles stated in French v. State, 85 Wis. 400, the conviction was erroneous and must be set aside. In that case the record did not show that the accused was present at any time during the trial, which lasted for several days, excepfwhen he 'was arraigned and pleaded; and hence it affirmatively ap*406peared that he was not present when the verdict was rendered, nor when sentence was pronounced. Under these circumstances it was held that the conviction was erroneous, that the record in capital cases must show the presence of the accused at the time of the rendition of the verdict and at the time of sentence, and that no presumption that the prisoner was present can be entertained if the record fails to show it. We shall test the present case by those rules. The clerk’s record in this case shows that-the trial began on November 23, 1899, and closed by the rendition of the verdict December 1, 1899. It affirmatively shows that the accused was present at the time of arraignment and plea, and at the opening of court, both forenoon and afternoon, on each day of the trial, up to and including the morning session of December 1st, at which time the jury were charged and retired. The record for the rest of the - day reads as follows:

“ In open court, December 1st, 1899, 2 o’clock p. m.

“ State of Wisconsin vs. William Hughes.

“ The jury, through Officer James Kane, intimated to the court that they desired to receive further instructions. Thereupon the court ordered the officer in charge to bring the jury into court. Jury appeared in open court at 4:20-o’clock p. m., and submitted two requests for instructions; defendant, William Hughes, defendant’s attorney, John H. Yaughn, District Attorney Isaac Eoss, and II. J. Loud, assistant district attorney, being present. Court ordered jury to retire, stating that it would take some time to prepare instructions as requested. Jury retired in charge of Officer Kane. Court ordered jury to be brought into court at 5:20 o’clock p. m., defendant, William Hughes, attorneys Yaughn, Eoss, and Loud being present. The court further instructed the jury. Jury retires in charge of Officer Kane.

“December 1st, 1899.

“ State of Wisconsin vs. William Hughes.

“Jury returned into court with the following verdict at 5:45 o’clock p. m.: ‘We, the jury impaneled and sworn to try the issue in the above-entitled action, find the defendant guilty of murder in the first degree, as charged in the information. J. F. Huehle, Foreman.’ ”

*407The record then shows on Decémber 4th and 5th following a motion for a new trial and the overruling thereof, and judgment on the verdict, at both of which times the accused was present.

The question is, Does the record, reasonably construed, show that the accused was present in court when the verdict was rendered ? We think it does. It certainly is not essential that the clerk shall enter the fact of the prisoner’s presence whenever a new witness is sworn or step taken in the case. If the record shows the presence of the prisoner at the opening of each session, with no intervening adjournments, it is quite clear that this is enough for that session. Thus, as a trial proceeds from day to day, with ordinary morning and afternoon sessions of court, the rule as to the record showing the presence of the defendant is satisfied if it shows his presence at the beginning of each session; not because any presumption is indulged in, but because the reasonable construction of the entry is, in the absence of anything to the contrary, that the prisoner was present during the session, and not simply at the moment the session began. Wharton, Cr. Pl. & Pr. § 551; State v. Lewis, 69 Mo. 92. Any other rule would require the clerk to be continually entering the presence of the defendant in order to keep jurisdiction. Now, in the present case it appears that the accused was present at the opening of the morning session wThen the jury was charged; that he was present during the afternoon session, both when the jury came in with their request and afterwards when they came in for further instructions. It also shows, under all reasonable inferences, that the jury came in and rendered their verdict during that very afternoon session, only a few minutes after they received the additional charge. We think the only reasonable and proper conclusion to be drawn from the record is that the prisoner was present during the entire afternoon session, during which session the verdict *408was rendered, and that snob conclusion does not require the support of any presumption.

There are no other assignments of error which require attention.

By the Oourt.— Judgment affirmed.