180 Wis. 568 | Wis. | 1923
Defendant seeks to have the judgment reversed and that he be discharged or a new trial granted on his assignments of errors, to wit: that there was insufficient evidence of his identification with the transaction; that testimony was improperly received as to his having been known by other names; that evidence as to his identification was improperly received from witnesses who based their testimony in part upon having seen him while in custod}'’ and after he had put on certain clothing and a cap and was seated in an automobile; error in the charge; and disregard of the evidence as to an alibi.
There is testimony showing that the three defendants had lived in summer cottages in the neighborhood of Oshkosh for several months preceding the transaction and were more or less together during that period. The affair at the bank took place in daylight and occupied but a very few moments. An examination of the record satisfies us that there was sufficient evidence from persons near the bank at the time to prove that defendant was on the outside of and near the bank just before the shots were fired and was in the front seat of the automobile in which the five men rushed away from the bank immediately after the alarm.
A member of the police department of St. Paul, Minnesota, and in charge of the bureau of identification, testified, over objection, that he had known defendant since 1917 at
A witness for the state was at a window in his place of business opposite the bank at the time of the crime. When he first saw defendant in custody witness was uncertain whether defendant was in fact the man he had seen in the automobile. A few days afterwards the witness, seeing the defendant in an automobile and wearing clothes and a cap like the one the witness thought the man he saw had worn, was quite positive as to the identity. The defendant objected to such evidence being received on the ground that it violated his constitutional exemption from being compelled to give evidence against himself, in that the fact of his being in custody, donning such cap, and sitting in the automobile implied that such was done by reason of coercion or duress of the officials. Upon the objection on these grounds being interposed the court stated: “So far as it appears he may have gone voluntarily.” No showing was then or at any time made or joffered to be made by defendant in support of such objection of anything tending to show that any force had been then used or that defendant had objected or protested. Upon the record we can find no error in this regard. Thornton v. State, 117 Wis. 338, 93 N. W. 1107.
The court charged the jury, among other things, as follows :
“It is undisputed that an attempt was made to rob that-bank on the day alleged and that it was robbed of a certain sum of money and that Mr. John E, Glatz was shot and*572 severely wounded. There is no definite proof as to who fired that shot, but if you find that these defendants in connection with others zuere engaged in a conspiracy to rob the bank and in so doing one of them shot Mr. Glats, then they are all of them equally guilty. It does not matter which-one fired the shot; if they zvere acting through a conspiracy, in concert with each other, in this attempt to commit the crime of robbing the bank, then the acts of one become the acts o.f all.”
The defendant filed written exceptions-to the • italicised, part of such charge and here contends that such was erroneous and prejudicial. There is no dispute about the fact that Rogers was not within the bank at any of the time when the shots were fired and the money taken. It is argued that, there being no conspiracy charged and no evidence introduced showing any prior agreement or understanding, the effect of such charge was to authorize the jury to convict this defendant of the two crimes of which the three were found guilty, namely, of assault with deadly weapons with intent to rob, and a similar assault with intent to kill and murder, though there was no proof of such two other offenses having been contemplated or as a part of any contemplated burglary, the count for which was not submitted to the jury.
While it may be conceded that the excepted-to portion of the charge as to conspiracy should not have been given, yet we cannot deem-such error, if error it was, prejudicial. - At most it required a finding by the jury of an additional condition to be proven by the state, namely, that there was a prior understanding between the defendant and the others concerned in this transaction that there could be a resort to deadly weapons in the affair- in question. If, however, defendant Rogers was outside the bank as watch-or guard and an active participant in the immediate and hasty escape of the others, the inference was a proper one for the jury to reach that he was an actor in all of the transactions going on
Testimony was given tending to show that defendant was elsewhere at the time of the occurrence. Such evidence presented a question of fact, and we cannot say that the jury were unwarranted in finding contrary to such evidence. Being convinced that the defendant had a fair trial his conviction must stand.
By the Court. — Judgment affirmed.
