222 Wis. 291 | Wis. | 1936
Lead Opinion
The following opinion was filed April 2, 1935 :
The plaintiff in error, hereinafter referred to as the defendant, claims that, (1) the evidence is insufficient to support the conviction, and that (2) he should be awarded a new trial because of statements made by a juror and in her presence during trial of the case.
(1) The'defendant was convicted of robbery of a bank in Menomonie by bandits, in the course of which one employee of the bank was shot by one of the bandits and wounded. Another employee was abducted by the robbers and by them left dead with a dead bandit beside the road a few miles from the city of Menomonie. Another bandit was found dead
Miss Gullickson, an employee of the bank, testified that she saw a bandit enter the bank, walk directly to Rommelmeyer, and point a gun at him, and heard him tell Rommelmeyer to “get back and lay down.” She had a clear vision and saw his face. She saw no other bandit. She identified the defendant as this bandit. She immediately, recognized the defendant as this bandit in a “show-up” in Minneapolis some six months after Rommelmeyer’s recognition of him there. Her identification was positive.
As weakening the force of the identifications of the defendant, the defense relies on the testimony of Mr. Austreng, a farmer and truck driver, who- was talking with Rommel-meyer at the time the bandit accosted him, and Hedtlevedt, his sixteen-year-old nephew, who was with him at the time. These two were facing Rommelmeyer and had their backs to the bandit as he approached. The first either knew of the bandit’s presence was when he came up' behind them and “put his gun in Rommelmeyer’s stomach.” They got a side view of the bandit but got a good look at him. They both testified that the defendant was not this bandit, and that the bandit was two or three inches shorter than the defendant. On the trial these men were shown pictures of the men Rom-melmeyer viewed at Fort Leavenworth. Austreng said one of the men resembled the bandit who' accosted Rommelmeyer, but he was not sure. The boy said one of the two pictures resembled this bandit more than any other picture he was shown. This constitutes the evidence that the defense claims “proves” that the man Rommelmeyer saw at Leavenworth was the bandit who accosted him. The bandit was behind these witnesses as they went to lie down. The defendant took the stand and denied any participation in the robbery. He also testified that he was in Minneapolis at the time of
We are of opinion that the evidence stated sustains the verdict of the jury. We cannot say that they were not justified in relying on the positive identification of the defendant by Rommelmeyer and Miss Gullickson. Rommelmeyer showed himself not disposed to convict anybody, by his refusal to place the crime upon the numerous other suspects he was taken to view. The credibility of the witnesses and the weight of their testimony was for the jury. If the testimony of these two witnesses that the defendant is the man who entered the bank and accosted Rommelmeyer at the time of the robbery is true, and the jury considered it was, the defendant is guilty of the crime charged. The trial judge refused to disturb the verdict, and in view of the evidence we cannot override his approval of it.
(2) The jurors were not kept together during the trial. Two women jurors stayed at a boardinghouse kept by Mrs. Baxter where Miss Gullickson, the state’s witness who' identified defendant as one of the bank robbers, boarded and roomed. Miss Gullickson heard one of these jurors, Mrs. Fisher, say to the other, Mrs. Baskin, at the boardinghouse, referring to Hedtlevedt, one of the defense witnesses, the sixteen-year-old boy referred to in the statement of the evidence made in connection with (1) above: “My, that little boy certainly done fine. You can just see the truth coming from his lips.” This came to the attention of the state’s at
We are of opinion that the defendant and his counsel are estopped to claim prejudice or a new trial because of the matters disclosed at Miss Gullickson’s examination. They evidently considered that what had occurred was to the defendant’s advantage rather than his prejudice, and preferred to take their chances with the jury rather than ask for a mistrial. They should be held to abide by their choice then made.
After the verdict was returned, the defendant’s counsel were informed that Miss Gullickson and others had made other statements in the presence of the jurors, and moved for a new trial on the ground of these statements and those above referred to. The court then summoned the juror, Mrs. Fisher, the landlady, and the landlady’s son, a young man of twenty-two years of.age. On this hearing it developed that the landlady’s son had said at the table that the defendant was a gambler or card shark and that the juror, Mrs. Fisher, had said in substance that his hands didn’t look like farmer’s
It also appeared from the examination of Mrs. Fisher, the juror, that Miss Gullickson had said that the state wanted Mr. Donley, who was counsel of the defendant, on their side. Mrs. Fisher testified that she saw Miss Gullickson when she went out of the judge’s chambers after her examination there during the trial, and that she woke up in the night and thought that Miss Gullickson had told on her, and that Miss Gullickson had got her into trouble. She further testified that Mrs. Baxter, the landlady, told her that Miss Gullickson had said she went through something awful and she (Miss Gullickson) would tell her (Mrs. Baxter) about it when the case was over. Mrs. Baxter also told Mrs. Fisher what the latter had said about the Hedtlevedt boy, and that Miss Gul-lickson was not going to stay at the house any more. It also appeared that Mrs. Baxter and the two jurors went to a church social together during the trial, but it did not appear that anything was there said about the case in the presence of the jurors. The son of the landlady testified at the hearing-before the judge, after the return of the verdict, that Miss Gullickson said at the table in the presence of the jurors that the Hedtlevedt boy was very good and brave. The landlady testified at this hearing that Mrs. Fisher, the juror, asked her about Miss Gullickson’s going into the judge’s office, and she told her Miss Gullickson would not tell what happened until the case was over.
Besides this testimony, affidavits were presented on the motion for a new trial. The other juror, Mrs. Baskin, in addition to corroborating some of the matters above stated, stated that she saw Miss Gullickson and Mrs. Baxter go to the judge’s chambers, and she knew “that tilings were not normal.” The Baxter girls, fifteen and twenty-five years old, gave a joint affidavit, in which they stated that when Mrs.
The husband of the juror, Mrs. Fisher, made an affidavit, presented on the motion for a new trial, in which he stated that when his wife went to sit on the jury she was in good health every way, and that when she came home after the trial she was very nervous and almost hysterical, and when she came into the house she threw on the table the money she had received for jury service and said: “I don’t want anything to do with that, it is blood money,” and became hysterical and cried and cried.
All of the matters above mentioned were properly receivable on the motion for a new trial. But for the conduct of the defendant and his counsel in not asking for a mistrial upon the disclosures made upon the examination of Miss Gul-lickson during the-trial, the court should have awarded a new trial because of them. But as the defendant and his counsel waived objection to the verdict because of the disclosures made upon the examination of Miss Gullickson during the trial, so did they, in our opinion, waive objection by reason of all the other matters disclosed on the examinations subsequent to the trial and the affidavits upon which the motion for a new trial was based. Nelson v. State, 186 Wis. 648,
Our holding that the defendant waived the misconduct upon which he bases his motion for a new trial has the support of previous decisions of the court. In Grottkau v. State, 70 Wis. 462, 36 N. W. 31, it was held that a party knowing of misconduct during a trial by remaining silent during the trial waives objection to it. This rule has been since followed in Wetzler v. Glassner, 185 Wis. 593, 598, 201 N. W. 740, and Schumacher v. Milwaukee, 209 Wis. 43, 243 N. W. 756. In the similar situation of prejudicial remarks of counsel it has often been held that one cannot remain silent at the time they are made and after the verdict assert them as ground for a new trial. Basile v. Fath, 185 Wis. 646, 201 N. W. 247, 202 N. W. 367.
Besides the matters above mentioned, the defendant urges as ground for a new trial statements contained in the affidavit of Mrs. Fisher of matters that occurred in the jury room; that she believed the defendant not guilty; that she voted guilty under fear because of Mrs. Baxter and Miss Gullick-son having been called in before the judge, and under fear because of what jurors said in the jury room; that she feared she would get into trouble and voted guilty because of this fear.
The affidavit of Mrs. Fisher as to the matters above stated was not receivable and cannot be considered. “The general rule is very ancient, and often reiterated, that the statements of jurors will not be received to establish their own misconduct or to impeach their verdict. Edmister v. Garrison, 18 Wis. *594, *603.” Wolfgram v. Schoepke, 123 Wis. 19, 24, 100 N. W. 1054. It is pointed out in the case last cited that some limitations of the rule exist, but the rule applies “to affidavits concerning their conduct in court or when deliberating upon the case.” Hempton v. State, 111 Wis. 127, 145, 86 N. W. 596; Dishmaker v. Heck, 159 Wis. 572, 578, 150 N. W. 951; Imperio v. State, 153 Wis. 455, 460, 141 N. W. 241. Many cases to this effect are cited in Woodward v.
By the Court. — The judgment of the circuit court is affirmed.
Rehearing
The following memorandum was filed September 15, 1936:
(on motion for rehearing). A motion for rehearing was duly filed by the defendant, but the filing of a brief in support of the motion was long delayed. No brief in opposition to the motion was filed by .the attorney general, the special prosecutor appointed by the court, or the district attorney. In absence of an opposing brief, a hearing before the members of the court in chambers was invited, at which the attorney for the defendant and the special prosecutor appeared. After this hearing the district attorney was invited to file an opposing brief if he desired, and no brief has been received.
In view of this unusual situation we have carefully reconsidered the case. We perceive no error in the rules of law stated and applied in the opinion of the court heretofore filed, but are persuaded that upon the record there is such doubt of the defendant’s connection with the crime involved that a new trial should be ordered in the interest of justice, and it will be so ordered. By reason of matters stated in the former opinion of the court respecting statements made to and in the presence of jurors, we consider that upon retrial of the case
The mandate heretofore entered is set aside; the judgment and sentence of the circuit court is reversed; and the cause is remanded for a new trial in accordance with the opinion. The warden of the state’s prison is directed to remand the defendant to the custody of the sheriff of Dunn county, to be held pursuant to the order of the committing magistrate.