83 Wis. 486 | Wis. | 1892
I. The plea in abatement, based on the alleged want of a legal preliminary examination of the plaintiff in error, was properly overruled, for the reason given by the trial court. In the municipal court he pleaded to the information “ Not guilty.” When he interposed his plea in abatement in the circuit court the plea of not guilty (which, of course, was a plea to the merits) was in full force, no leave having been granted or asked to withdraw it. The statute provides that “ no failure or omission of such preliminary examination shall in any case invalidate any information in any court, unless the defendant shall take advantage of such failure or omission, before pleading to the merits, by a plea in abatement. S. & B. Ann. Stats, sec. 4654.
Such plea in abatement might also have been properly overruled on the merits. It appears from the record that the original complaint against Ryan and those prosecuted with him was made to the municipal court; that process for their arrest was issued by that court; and that their examination on such complaint was had before the judge of that court. In the statute creating the municipal court of Ashland county it is provided that the clerk of such court “ may examine on oath all persons applying for warrants, reduce such examinations to writing and file the same, and issue all warrants and other process from said court.” Laws of 1889, ch. 94, sec. 5. These acts of the clerk are all under the supervision of the judge of the court and subject to his control. In a certain sense they are the acts of the judge or the court. We perceive no valid constitu
It is stated in the bill of exceptions that, after the plea in abatement was overruled, Ryan was again arraigned and again pleaded not guilty. This second arraignment and plea were entirely superfluous, and no effect whatever can be given thereto.
II. It appears by the bill of exceptions that when the district attorney was opening the case for the prosecution to the jury the court suggested to him “ that he explain to the jury what a statutory breaking is, and what burglary is, in the eye of the law,” and that the district attorney thereupon “ defined the meaning of those terms according to the statute.” The remarks of the district attorney in response to the suggestion of the court are not preserved in the record. It further appears that before any testimony was introduced, the court, in somewhat extended remarks, which are preserved in the bill of exceptions, admonished the jury of their duties, and of the rights of persons on trial charged with crime. The above procedure is assigned for error, not because either the district attorney or judge laid down any bad law, or said anything improper, but because the same was not in the course of orderly judicial procedure in criminal trials.
"We are aware of no law which prohibits the trial court, in a criminal case, from asking the district attorney, in his opening, to define to the jury the crime under consideration. And if, as in this case, he defines it correctly, we think it is not error. Neither do we think it error if the court sees fit, at the commencement of the trial, to instruct
III. Numerous exceptions on behalf of the plaintiff in error were taken on the trial to the rulings of the court on objections to the admission of testimony. Some of them are of no importance, and will not be further referred to. Others will now be briefly noticed.
IV. On an objection to testimony, the trial judge said that if jRycm took a change of venue for the purpose of lessening the chances of his being convicted, he was not inclined to stretch a certain rule of evidence supposed to have been laid down by this court. When the remark was challenged, the judge at once withdrew it as improper, but said there was need of legislation to prevent persons jointly prosecuted from, obtaining separate trials by one or more of them taking a change of venue. We do not think this circumstance is a reversible error. It would, indeed, be a peculiar case which would render necessary the reversal of a judgment' because of a supposed improper remark by the judge in the presence of a jury, which was immediately recalled and repudiated in the same presence. We do not regard this as such a case;
V. Nearly the whole charge to the jury (and it is quite lengthy) is excepted to by paragraphs or sentences. The detached portions thereof which are discussed in the argument cannot be fully or properly understood without quoting more of the charge than it is deemed advisable to insert here. We content ourselves, therefore, with a statement of the substance thereof, in so far as its accuracy is specifically challenged in the argument. The objections to it, so far as they seem to require notice, are to what the judge said therein concerning the presumption arising from finding property, recently stolen, in possession of the accused, and to his definition or explanation of a “ reasonable doubt.” As to the presumption, the charge was, in substance, that the mere possession of stolen goods is not in itself sufficient evidence on which to convict a person of burglary, yet such possession is a fact to be considered in connection with the other facts proved tending to show the
On the subject of reasonable doubt there is some confusion in the language of the charge. Yet we think the jury must have understood the court to instruct them that they could not properly convict Ryan unless the evidence satisfied them of'his guilt beyond a reasonable doubt,' — that is, to a moral certainty; and that they should require equally as strong and conclusive evidence of his guilt as they would require to induce them to enter upon the great and most important acts of their lives, always remembering' that their verdict must be the truth. There are cases which condemn the above definition, or rather test, of what is a reasonable doubt. One of these is Leonard v. Territory, 2
VI. Several instructions proposed on behalf of the plaintiff in error were refused. They are to the effect that from the mere possession of stolen goods burglary cannot be inferred ; that such possession of itself does not prove or tend to prove that the possessor was guilty of burglary, and was not prima facie evidence of the fact. We have already held that the court instructed-correctly on this subject in the general charge. Such charge seems to contain all that was proper to be given in the proposed instructions; hence the refusal to give them was not error.
VII. We see no good reason why the court, in appointing counsel to defend a person charged with crime, may not limit such appointment to that court and to the trial
The record discloses no reversible error, and the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.