126 Wis. 470 | Wis. | 1906
The errors assigned raise the following questions for review: First, the exclusion of testimony; second,
It is further contended by counsel for tbe state tbat tbe offense sought to be proved by tbe. question is not a criminal' offense under sec. 4013, Stats. 1898, because not made such in localities where there is a municipal ordinance or regulation for tbe punishment of drunkenness, and tbat in tbe city of Milwaukee such offense is so punishable. We have-discovered no evidence in tbe record to tbe effect tbat there is any ordinance or regulation upon the subject in tbe city of Milwaukee, nor is tbe question confined to tbe commission of a criminal offense in tbe city of Milwaukee. So far as appears from tbe record and tbe form of tbe question asked, tbe criminal offense sought to be proved may as well have been committed in any other locality as in tbe city of Milwaukee,, and obviously may have reference to tbe commission of an offense some place within tbe state of Wisconsin where there' was no municipal ordinance or regulation respecting tbe matter. See. 1561 being in force in all parts of tbe state, and the-question not being confined to any locality, it must be deemed
“A person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any •question relevant to that inquiry, and the party cross-examining him is not concluded by his answer.”
Hnder a similar statute in Missouri the court holds that the term “criminal offense,” as used in the statute, includes both felonies and misdemeanors, and that evidence tending to show that witnesses had been convicted of misdemeanors was competent as affecting their credibility. State v. Blitz, 171 Mo.
But the question arises here whether a conviction under a-city ordinance is a criminal offense within the meaning of" sec. 4073. Sec. 2598 defines a criminal action as one prosecuted by the state as a party against a person charged with a-public offense. A crime or misdemeanor is defined to be “an act committed or omitted in violation of a public law either-prohibiting or commanding it.” 4 Bl. Com. 5; In re Bergin, 31 Wis. 383. “A crime is any wrong which the government deems injurious to the public at large, and punishes through a judicial proceeding in its own name.” 1 Bishop, New Crim. Law, § 32. State ex rel. Mixer v. Supervisors, 26 Mich. 422, holds that the term “criminal cases” used in the-laws refers only to prosecutions under the state laws, and' prosecutions under city ordinances do not come within the-term, and that “no offense is a crime which does not violate the law of the land.” It has been held in New York,, under a statute providing that a person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the-record or upon cross-examination, that a conviction under a city ordinance was not a conviction of a misdemeanor withim the meaning of the statute. Arhart v. Stark, supra. See, also, on this proposition, Stoltman v. Lake, supra; Coble v. State, 31 Ohio St. 100; Williams v. Augusta, 4 Ga. 509; Madison v. Horner, 15 S. D. 359, 89 N. W. 474; Davenport v. Bird, 34 Iowa, 524; Brookville v. Gagle, 73 Ind. 117; Kansas v. Clark, 68 Mo. 588; Byers v. Comm. 42 Pa. St. 89; Wiggins v. Chicago, 68 Ill. 372. True, in Boscobel v. Bug
In the above cases the verdicts were sustained, and the errors complained of held not sufficient to disturb the verdicts. These cases are mainly relied upon here by counsel for the state, but it will be seen from a careful examination of them that they do not reach the question before us. The cases, however, are not altogether uniform upon this subject. Re
“This is not the case of a jury having been allowed to separate during the progress of a trial, or coming in contact with the people generally, in which case it must appear that some injury resulted to the defendant, and therefore the authorities cited by counsel for the people have no application.”
In Comm. v. Dorus, 108 Mass. 488, the case was committed to the jury with instructions that if they should agree upon a verdict during the adjournment of court they might seal it up and separate. In coming into court after adjournment it appeared they had agreed upon a verdict and separated without reducing it to writing. The judge then directed them to retire and reduce it-to writing and return it without further deliberation. They accordingly retired, and soon afterwards returned a verdict in writing of guilty, signed by the whole panel. This verdict was affirmed by the jury upon the usual inquiry put by the clerk as directed by the court, under objection of defendant. On appeal the verdict was held invalid. In Comm. v. Tobin, 125 Mass. 203, 206, in a prosecution for felony,- the court said:
“When the jury have been permitted to separate after .-agreeing upon and sealing up a vei’dict, there is this differ•ence between civil and criminal cases: In a civil action, if the -written verdict does not pass upon the whole case, or the jury refuse to affirm it, the court may send them out again, and a fuller or different verdict afterwards returned will be good. But in a criminal case the oral verdict pronounced by the foreman in open court cannot be received unless it is shown to accord substantially with the form sealed up by the jury before their separation.”
We believe the rule in Illinois and Massachusetts, above cited, is best calculated to elevate the standard of jury trials
In tbe case before us tbe verdict agreed upon and delivered into court was a nullity. It was not sufficient to support a conviction, and to allow tbe jury after they bad separated and mingled with tbe public to practically make a new verdict would be a dangerous practice, and contrary to a correct administration of the criminal law. Counsel cites State v. Glass, 50 Wis. 218, 6 N. W. 500, to tbe point that an oral verdict may be delivered in a criminal case. This is doubtless true, but tbe difficulty is that tbe verdict of tbe jury in tbe case at bar was not delivered orally. Tbe jury agreed upon a verdict, signed and sealed it, and then separated. Their function for deliberation and agreeing upon a verdict ceased as soon as they separated. They bad no further office to perform, except to- deliver into court and announce the sealed verdict as tbe verdict of tbe jury. They could deliver this verdict orally, but they could not deliver a different verdict, orally or otherwise. Comm. v. Tobin, supra.
By ihe Gourt. — Judgment of the court below is reversed,, and the cause remanded for a new trial.