Koch v. State, 106 N.W. 531

KeewiN, J.

The errors assigned raise the following questions for review: First, the exclusion of testimony; second, *473whether the evidence was sufficient to sustain a conviction; third, whether error was committed in receiving and changing the written verdict; fourth, whether the court erred in refusing to instruct as requested, and in the instructions given.

1. The state produced as a witness one Kanter, who testified to facts tending to connect plaintiff in error with the •crime charged. On cross-examination he was asked the following question: “Have you ever been arrested and convicted of being drunk and disorderly ?” The question was objected to as incompetent, irrelevant, and immaterial, and the objection sustained, and this ruling is assigned as error. It is contended that the evidence sought to be adduced was proper under see. 4073, Stats. 1898, and the ruling of this court in Colbert v. State, 125 Wis. 423, 104 N. W. 61. Sec. 4073 provides that 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 his own cross-examination. The question asked on cross-examination, therefore, was competent under the statute ‘if an answer in the affirmative would tend to prove that the witness had been convicted of a criminal offense. See. 1561 makes it a criminal offense, punishable by fine and imprisonment, for any person to be found in any public place in such ■state of intoxication as to disturb others, or unable, by reason of his condition, to care for his own safety or the safety of others. While the question asked did not cover specifically all the elements going to make up the offense under this statute, it was fairly intended to draw from the witness evidence tending to prove his coiiviction under this statute. So far as the record shows, this was the only question asked upon the ■subject, and it being competent to prove conviction under‘this statute, the evidence was proper and should have been admitted. Thornton v. State, 117 Wis. 338, 93 N. W. 1107. The •question was not objected to because not sufficiently specific, :and dbviously was ruled out on the ground that evidence of *474conviction of this offense was not competent. No objection is-made by the attorney general that tbe question was not sufficiently specific to cover tbe criminal offense described in sec. 1561, Stats. 1898, but be insists tbat it was objectionable because it asked in one question two facts, one of wliicb, as to arrest, was entirely immaterial. We cannot see tbat tbis objection is tenable. While it would not be proper to ask the-witness whether be bad ever been arrested, because an arrest would be wholly immaterial unless followed by conviction,, such question would not be prejudicial error when followed by tbe further question relative to conviction. Thornton v. State, supra. So we are unable to see tbat there was any prejudicial error in embracing tbe two facts, arrest and conviction, in one question. Unless conviction could be proved it would not be competent to prove arrest, and proof of arrest was only competent in connection with proof of conviction. Therefore there was no objection to tbe form of tbe question.

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 *475to have reference to a locality where no municipal ordinance- or regulation bad been passed. In Colbert v. State, 125 Wis. 423, 104 N. W. 61, tbis court did not pass upon the question-whether a conviction for breach of an ordinance was a conviction of a criminal offense under sec. 4073. The point was-neither presented nor brought to the attention of‘the court. After the defendant had denied that she lived in Milwaukee-in 1889 or had ever been convicted, the state offered in evidence a certified copy of record of conviction of one Lucy La Blanche for violation of one of the city ordinances on November 18, 1889. The evidence also tended to show that defend-” ant lived in Milwaukee in 1889 and was then known as Lucy or Lucille La Blanc or La Blanche, and the only question considered upon this ruling was whether the evidence showing-identity of name was sufficient to establish prima, facie identity of the person so as to authorize reception of the testimony as bearing on the question of credibility. Whether a conviction under an ordinance was a conviction of a criminal offense was neither raised nor considered. At common law it was-only convictions of crimes which rendered the person infamous that excluded him from being a witness, and it was regarded a point of no small difficulty to determine precisely the-crime which rendered the perpetrator thus infamous. It was the infamy of the crime, not the nature or mode of punishment, that rendered the witness incompetent.- 1 Greenl. Evidence (16th ed.) §§ 372, 373; Bartholomew v. People, 104 Ill. 601; State v. Taylor, 98 Mo. 240, 11 S. W. 570. The-rule of the common law, however, has been regulated by legislative enactment. In England, by statute, “a witness may be-questioned as to whether he has been convicted of any felony or misdemeanor.” 3 Taylor, Evidence, § 1437. Statutes-exist in many of the states regulating the subject. In some states such statutes have been held to remove the common-law disability and permit proof of former conviction of infamous-crimes only to affect credibility (Card v. Foot, 57 Conn. *476427, 18 Atl. 713; Bartholomew v. People, supra; Coble v. State, 31 Ohio St. 100); while in other states statutes providing that a party who has been convicted of a criminal of fense may testify, but that the conviction may be proved to affect his credibility, apply to misdemeanors as well as felonies. In New York, under a statute quite similar to ours, it is held that the statute was intended to establish a uniform rule and jiermit the conviction of a witness of any crime to be proved, and allow the effect of such conviction upon his credibility to be passed upon by the jury. People v. Burns, 33 Hun, 296. The same rule has been held in other states. In State v. Sauer, 42 Minn. 258, 44 N. W. 115, it is said: “From the earliest legislation-in this state, all felonies and all misdemeanors have been denominated as ‘crimes,’ ” and it is held that the conviction of any crime may be received to affect the weight of the witness’s testimony. In Massachusetts, under a statute providing that “conviction of any crime may be shown to affect the credibility of any person testifying,” it was held that the statute applied to any crime, and it is said: ‘“It is obvious that some offenses that are not felonies may affect one’s credibility much more than some felonies.” See Comm. v. Hall, 4 Allen, 305; Comm. v. Ford, 146 Mass. 131, 15 N. E. 153; Arhart v. Slark, 27 N. Y. Supp. 301. Our •statute on this subject (sec. 4073) provides:

“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. *477530, 71 S. W. 1027. We think it clear, therefore, that “criminal offenses,” within the meaning of sec. 4073, Stats. 1898, includes a misdemeanor. Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920; In re Bergin, 31 Wis. 383; State v. Blitz, supra; Comm. v. Ford, supra; State v. Sauer, supra; People v. Burns, supra.

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*478bee, 41 Wig. 59, it was held tbat a prosecution under a city •ordinance was gzwsi-criminal, but wbat was said there, when •viewed in the light of other decisions of this court, clearly •shows that it was not the intention of the court to hold that a conviction under a city ordinance was a conviction of a criminal offense within the meaning of this statute. Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 552; State ex rel. Milwaukee v. Newman, 96 Wis. 258, 71 N. W. 438; Ogden v. Madison, 111 Wis. 413, 87 N. W. 568; Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920; State v. Bartlett, 35 Wis. 287. We are therefore forced to the conclusion, upon principle and ■authority, that the term “criminal offense,” within the meaning of sec. 4073, Stats. 1898, includes misdemeanors as well as felonies, but that conviction under a municipal ordinance •is not a conviction of a criminal offense within the meaning of such statute.

2. Error is assigned on the ground of insufficiency of the ‘testimony to sustain the conviction. It is claimed the evidence shows that plaintiff in error did not participate in, or have any intention of committing, the crime, and was wholly incapable, by reason of drunkenness, to form the intent necessary to commit the crime. Since there must be a new trial, in which event the evidence may differ from that upon the last, it is unnecessary to treat this assignment of error. But we may say in passing, without entering into a discussion of the evidence, that after careful examination we are convinced •it is sufficient to support a conviction for the crime of larceny from the person.

3. Error is assigned because the verdict received was a nullity and could not be amended after the jury had separated. The sealed verdict returned into court found the plaintiff in •error guilty of larceny only. There was no finding that he was guilty of larceny from the person nor of the value of the property taken. It is clear this finding was not sufficient to •support the conviction. McEntee v. State, 24 Wis. 43; La *479Tour v. State, 93 Wis. 603, 67 N. W. 1138; Allen v. State, 85 Wis. 22, 54 N. W. 999. The question, therefore, arises whether the verdict could have been amended upon the facts heretofore stated. It is contended on the part of the state that it was not error to permit the jury, even after separation, to correct and explain their verdict, and several cases are cited, civil and criminal, which, it is claimed, support this position. In State ex rel. White Oak Springs v. Clementson, 69 Wis. 628, 35 N. W. 56, it was held that the jury may, after announcing a verdict, if they see fit and before they are discharged, change the same and render a different one, and that where the jury have manifestly made an omission or mis- . take in their verdict the presiding judge may call their attention to-that fact, and return it to them for correction. In Victor S. M. Co. v. Heller, 44 Wis. 265, after the jury had returned their verdict, the judge told them they were discharged, but immediately and before they left their seats or communicated with any one called their attention to imperfections in the verdict and put it in the form which they affirmed was intended, and it was signed by the foreman and declared by the jury to be their verdict. It was held that, it being clear that the verdict entered was the one intended, there was no error. In Wightmam v. C. & N. W. R. Co. 73 Wis. 169, 40 N. W. 689, the jury returned a special verdict, and the court, finding the answers inconsistent, sent them to ■their room for further consultation,” and after they returned sent them out again for further consultation, refusing to receive the verdict because defective, and afterwards, upon returning the verdict complete, it was recorded by the court. In these cases the jury had not separated during their deliberations, the changes in the verdicts being made during the time of deliberation and before discharge or separation and while the jury were still together as such. In Reins v. People, 30 Ill. 256, the jury were permitted by consent of parties to seal their verdict and separate. They appeared in court *480the following morning and delivered it. No change was-made or necessary in the verdict after it was sealed. The stipulation of the parties was strictly complied with. In Marzen v. People, 190 Ill. 81, 60 N. E. 102, one ground of error was that a juror was allowed to separate without the consent of defendant; but the facts in the case show that a juror became ill during the trial and before submission of the case to the jury for decision; that he was allowed to remain in the jury room and permitted to see his wife, a physician and one other party, while the balance of the jury were removed from the room. It did not appear that the juror was not attended by a sworn officer. In State v. Harrison, 36 W. Va. 729, 15 S. E. 982, a juror arose from his bed and left his room between 12 and 1 o’clock at night under the supervision of the sheriff, and was absent from four to eight minutes, returning to his room and not seeing any one while absent. In Gott v. People, 187 Ill. 249, 58 N. E. 293, it appeared that, during the trial of the case and before the jury retired to consider their, verdict, jurors separated for a short time, but were accompanied by one or two bailiffs, and were not allowed to talk or be talked to or hear anything prejudicial to the plaintiff in error. In State v. Williams, 149 Mo. 496, 51 S. W. 88, after the jury were impaneled and before any testimony taken, one of the jurors went a short distance without being subjected to any improper influence, the other jurors waiting until his return. And in Payne v. State, 66 Ark. 545, 52 S. W. 276, some of the jurors temporarily sepai’ated from the others before any evidence was taken, but were subjected to no improper influence.

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*481spectable authority may be found holding that verdicts in criminal, as well as civil, cases can be amended after separation of the jury. Proffatt, Jury Trials, §§ 456, 460; 1 Bishop, New Grim. Proc. § 1003; Beal v. Cunningham, 42 Me. 362; Pehlman v. State, 115 Ind. 131, 17 N. E. 270. This court held in a civil case (Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054) that affidavits of the jurors after their discharge were competent to show the verdict actually rendered, where it appeared a mistake had been made in entering it. The affidavits, however, were used upon motion for new trial, and the court did not order judgment upon the amended verdict, but granted a new trial. As will be seen, a distinction is made in the case last cited between proceedings involved in reaching and agreeing upon a verdict and the mere fact of expressing it, either orally or in writing. In Allen v. State, 85 Wis. 22, 54 N. W. 999, it was held that a defective verdict in a murder case could not be- corrected either by the court or by reassembling the jury after they had been discharged. In Illinois and Massachusetts it has been held that in a prosecution for felony it is error for the court to allow the verdict to be corrected or amended in matter of substance after it has been agreed upon, signed and sealed, and the jury has separated. In Farley v. People, 138 Ill. 97, 27 N. E. 927, in a trial on charge of larceny, the court, with the consent of defendants’ counsel, given in open court, directed that the jury be permitted to seal their verdict when arrived at and return the same into court at the opening session the following day, and on the same afternoon the jury separated and went to their respective homes, returning into court the following morning and producing what they intended as a sealed verdict of guilty as to both defendants. The verdict,, however, failed to fix the term of imprisonment of one defendant. Thereupon the court directed them to again retire and complete their verdict. Defendant objected, but the objection was overruled. After some delay the jury *482brought in a second verdict, finding defendants guilty and fixing the punishment. Judgment was entered on the last verdict, and reversed on appeal on the ground that after the jury had separated they had no further power over their verdict. The court distinguished the case from separation during the trial, and said (138 Ill. 102, 27 N. E. 929):

“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 *483■•and preserve tbe purity and integrity of tbe jury system. Whatever tends to subject a jury to temptation or improper influence during tbe trial, and especially after they have retired for deliberation, should be jealously guarded against, to tbe end that tbe accused may be protected in bis constitutional night of a fair trial by an impartial jury.

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.

4. Error is assigned because of refusal to instruct as re■quested and because of instructions given. Tbe errors complained of under this bead cannot be considered for want of proper exceptions. Tbe exceptions referred to by counsel for plaintiff in error as being in tbe record do not appear to have been incorporated in tbe bill of exceptions, therefore cannot be considered. But it is further claimed that exceptions were incorporated in motion for new trial, set forth in separate paragraphs, and assigned as reasons for new trial, and it is urged that under tbe ruling in Wells v. Perkins, 43 Wis. 160, tbe exception to the order denying motion for new trial was sufficient. We cannot think this contention tenable. Tbe *484plaintiff in error moved for a new trial on twelve separate and different grounds, and filed a general exception to tbe order denying tbe motion. In Wells v. Perkins, supra, tbe portion of tbe charge beld erroneous was specifically, pointed out in tbe motion for new trial, and no other part of tbe charge referred to, while here a considerable portion of tbe charge is-set out in motion for new trial, embracing several separate and distinct propositions, some of which, at least, are correct-statements of the law. The exception, therefore, to the order-denying motion for new trial is not available on the question-of error in the charge. Exceptions so general must be disregarded. It follows, therefore, that the court erred in excluding evidence on cross-examination, in permitting the verdict to be amended, and in denying the motion for new trial.

By ihe Gourt. — Judgment of the court below is reversed,, and the cause remanded for a new trial.

Case Details

Case Name: Koch v. State

Court Name: Wisconsin Supreme Court

Date Published: Jan 9, 1906

Citations: 106 N.W. 531; 126 Wis. 470; 1906 Wisc. LEXIS 138

Court Abbreviation: Wis.