124 Wis. 635 | Wis. | 1905
The plea in abatement, alleging that the court had no jurisdiction of the person or of the subject matter of the transaction, is based upon the ground that no. sufficient and valid complaint had been filed before the defendant was arrested and the preliminary examination was. held. The complaint states facts which, in effect, set forth the necessary elements constituting the alleged offense. The complainant in form deposes and states that he, “being first' duly sworn, on oath complains to the district court of the county of Milwaukee, and states that he has good reason to< believe and does believe” that the defendant, while acting in his official capacity as an alderman of the city of Milwaukee, did corruptly receive money to influence him in his official action, vote, and judgment in respect to matters then pending wherein he was by law required to act. The contention is that a complaint upon information and belief does not
In State ex rel. Long v. Keyes, 75 Wis. 288, 44 N. W. 13, it is declared that see. 4776, adopted as early as 1839, was taken from the statutes of New York.as it had there stood for some time. The claim that a good and sufficient complaint under this statute must state in positive and direct terms that the offense charged has been committed was fully considered and determined in the case of State v. Davie, 62 Wis. 305, 22 N. W. 411. True, that was a complaint charging a simple misdemeanor, upon which the accused was tried, convicted, and sentenced; but, as above indicated, the requirements of the statute now before us and the one before the court in that case are alike in providing what proceedings shall be had in making complaint for the apprehension of offenders. ■ In that ease, as in this, the constitutional provisions which prohibit persons from being held to answer for criminal offenses without due process of law were appealed to. Upon a full consideration of this question, then presented, and in view of the adjudications in other jurisdictions seemingly in conflict
Counsel concede that the practice of trying persons upon complaint on information and belief in misdemeanor cases is
This construction of the statute, we believe, has been followed since its adoption, and has the sanction of long years of acquiescence in the tidal courts, and has not been questioned in this court except in the instances above mentioned. We must hold that the complaint is sufficient under sec. 4475, and that the plea in abatement was properly overruled.
2. The information charges that the defendant, pursuant to an understanding and agreement with one Oscar E. Davis, corruptly received money to influence him in the casting of his vote as a member of the common council of the city of Milwaukee for the passage of an ordinance pending before the common council, whereby it was sought to grant to the Davis Bros. Manufacturing Company the right to lay a railroad track along and across a public street of the city. The charge is alleged with sufficient particularity to meet the requirements of sec. 4475, Stats. 1898. The defendant demurred to the information upon the ground that it appeared upon the face thereof that the ordinance described therein could not, by law, be then pending, nor be brought before
“Any person -who shall corruptly give, offer or promise to any . . . legislative . . . officer of . . . [a] city . . . any gift or gratuity, or any money, goods, thing'in action, personal or real property, or anything of value, . . . with intent to influence his vote, opinion, judgment or action upon any question, matter, cause or proceeding which may then bo pending, or which may by law come or be brought before him in his official capacity, and any such officer who shall corruptly accept or receive any such gift, [etc.] under any agreement or understanding that his vote, opinion, judgment or action should be thereby so influenced shall be punished” ■ as prescribed.
The language of the statute malíes it plain that the acts charged as criminal must arise out of a transaction which pertains to a question, matter, cause, or proceeding wtbich is pending, or -which may by law come or be brought, before such officer in his official capacity. It is claimed that since the ordinance attempted to bestow on the members of the company a privilege which in law it had no right to grant, it must be held that the act of voting on the passage or re
We are cited to the cases of James v. Bowman, 190 U. S. 127, 23 Sup. Ct. 678; U. S. v. Boyer, 85 Fed. 425; Collins v. State, 25 Tex. Supp, 202; and State v. Butler, 178 Mo. 272, 77 S. W. 560, among others, as sustaining the position that bribery cannot be predicated upon the action of the defendant in voting on the ordinance in question because the privilege sought to be bestowed is invalid. An examination of these decisions shows that they do not support the contention, but that, in so far as they deal with the subject in hand, they support the conclusion above stated. In those instances wherein it was ruled that no offense had been shown, it was upon the ground that the act charged as corrupt official conduct pertained to some matter over which the law neither expressly nor by implication granted the officers involved any authority. Such cases differ from the instant case, which presents one wherein the accused is charged with having received money corruptly to influence him in his vote and action upon a matter and proceeding over which the common council1
3. Error is assigned upon the ruling of the trial court to the effect that the proceedings before a grand jury are privileged from being adduced before it as evidence by the defendant for the purpose of showing bis. immunity under sec. 4078, Stats. 1898, as amended by ch. 85, Laws of 1901. The amended section provides that no witness or party in the actions, proceedings, or examinations therein specified
“shall be excused from testifying on the ground that bis testimony may expose him to prosecution for any crime, misdemeanor or forfeiture. But no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning wbicb be may testify, or produce evidence, documentary or otherwise, in sxich action, proceeding or examination, except a prosecution for perjury committed in giving such testimony.”
It is not questioned but that this statute gives the defendant an important right, in that be may assert a statutory exemption from punishment by way of defense in a criminal prosecution. An act of Congress of like import was held valid legislation, and it was decided that under its terms witnesses and parties could be compelled to give testimony of a self-incriminating character, if the provisions of the statute afforded immunity from prosecution for the offensevto which the testimony related. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644. The defendant interposed a plea in bar claiming immunity from punishment for the offense charged
“The reasons on which the sanction of secrecy which the ■common law gives to proceedings before grand juries is founded are said in the books to be three-fold: One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge’of facts testified to before the grand jury, which, 'if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made.”
It is urged that the rule of the common law as to the competency of this class of evidence cannot control, because the subject is regulated by statute, which excludes it except as therein made competent. The statutory provisions on the subject are embodied in secs. 2553-2555. An examination of' these sections shows that, when the court so orders, grand jurors and officers attending’on them a-re forbidden to make-disclosure of the fact that an indictment for felony has been found until the arrest of the offender; that the jurors are not. allowed to state or testify in what manner they may have-voted, or -what opinion was expressed by any of them, on any question before them; and that the members of the jury may be required to testify as to whether the testimony of a witness examined before them is consistent with or differs from his evidence before a court; and in prosecutions for perjury of” the person who appeared and testified before them they may
But an additional and very strong and cogent reason for holding this evidence material and competent is found in applying the provisions of ch. 85, Laws of 1901, quoted above. As stated, this statute takes from the defendant a very important right, in that he may be compelled to give testimony before the grand jury, and for the deprivation of this constitutional privilege has granted him complete immunity from prosecution or subjection to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testified or produced evidence. If the defendant can establish that he is entitled to such immunity, it will be a complete defense to any further proceeding and entitle him to a discharge from further prosecution. In its legal aspect this right is as important to the defendant as any
4. It is contended that the court erred in directing a verdict against defendant on the special issue raised by this plea in bar. The evidence before the court upon this issue seems to permit of no inferences tending to sustain defendant’s plea. Under these circumstances the court was warranted in instructing the jury that there was no proof before them \fhich could support defendant’s plea, and that they must so find upon the special issue.
5. It is further alleged that there was a fatal variance between the evidence and the allegations of the information, and that the court improperly refused to give the instructions requested on this point. We deem it sufficient to state as to this assignment of error that we do not find a fatal variance between the proof and the charge. The facts in evidence were such that a jury might reasonably infer that defendant was the recipient of a part of the money paid by Oscar E. Davis, and that he received it under an understanding that it was received for the purpose of influencing his vote or action in reference to the ordinance in question. State v. Dunn, 125 Wis. 181, 102 N. W. 935. Defendant’s requests for instructions to the jury on this branch of the case do not
The defendant submitted several instructions requesting* the court, in effect, to inform the jury that they would not be warranted in law in convicting the defendant, because the evidence relied on to establish guilt is the uncorroborated evidence of accomplices in crime. In the case of Black v. State, 59 Wis. 471, 18 N. W. 457, this court held that: “When there is no evidence against the accused, except the uncorroborated testimony of an accomplice, it is discretionary with the trial court whether to direct an acquittal or notand that “a judgment will not be reversed for refusing to set aside a verdict founded upon such testimony alone." The rule thus adopted was approved in State v. Juneau, 88 Wis. 180, 59 N. W. 580, and in Porath v. State, 90 Wis. 527, 63 N. W. 1061. In the latter case, speaking on this subject, it is said:
“It was discretionary with the trial court whether to direct an acquittal or not, and a judgment founded on such uncorroborated testimony alone will not be reversed. The trial court was not required to direct an acquittal on that ground, or to give any instruction to the jury as to the effect of the testimony of the prosecutrix" (if she be regarded as an accomplice).
This ruling is supported by the established practice, upon the principle that the trial court acts within the field of its discretion as to whether a verdict of acquittal should be directed, or admonitory instructions cautioning them against finding a verdict of guilty upon such testimony only should be given to the jury. An examination of the evidence in this case shows clearly that the court did not abuse its discretion in refusing to give the requested instructions, in that the testimony is amply sufficient to sustain the verdict; but the
By the Court. — Tbe judgment is reversed, and tbe cause is remanded for a new trial. Tbe inspector of tbe Milwaukee bouse of correction will deliver tbe plaintiff in error to tbe sheriff of Milwaukee county, wbo is directed to keep tbe said Murphy in bis custody until be is duly discharged therefrom, or until otherwise ordered according to law.