204 Wis. 235 | Wis. | 1931
Before proceeding to discuss the various assignments of error it will be necessary briefly to review the facts in order that an intelligent understanding of the main events may be had. Paul Brice, a resident of Chicago, had been going to Whispering Pines Resort in Oneida county for a number of years prior to 1929. He was thor
The girls then begged to be taken home. The car was started and proceeded a short distance down the road, when Brice told the defendant to stop the car. The defendant stopped the car and Brice again attacked Terry. There is testimony that the defendant at the.request of Brice turned on the dome light of the car; that he refused to start the car when asked to do so by Clara; that he jokingly encouraged Paul during this attack; that Paul cursed and swore at Terry, and bumped her head against the back of the car; that Terry screamed and begged Brice to desist; that the defendant leaned over the back of the front seat and held Terry’s legs and said to Brice “Now you got her.” Clara continually begged the defendant to take them home. This is the incident upon which the second count in the information was based.
After a time the car was started once more on its way. After proceeding some distance, Brice again requested the defendant to stop the car, which request was promptly complied with, and another attack was made by Brice upon
These are in brief the outstanding facts which were testified to upon the trial. A studied attempt has been made to eliminate from this opinion as many of the salacious details as possible, while preserving a fairly full and continuous recital of the revolting events of that night.
We may now proceed to discuss the several assignments of error. The defendant first contends that the court committed prejudicial error in making certain remarks in the presence of the jurors composing the panel, when the case was called for trial. While the remarks of the court are fully preserved in the record there is nothing to show that any of the jurymen were present within hearing distance. The remarks were made two days before the trial was begun and before the jury which tried the case was impaneled. The remarks complained of were made at a time when Mr. Smith, who had just been retained by Brice, was asking the court for additional time in which to prepare for trial. The court seemed somewhat incensed at a certain attorney who had apparently neglected to inform the court that he had withdrawn from the case. The remarks complained of were made in an extended colloquy which occurred between the court and the attorneys. The remarks complained of are as follows:
“The Court: Apparently the defendant Brice deemed it necessary for him to get a very high-priced counsel and*243 travel a long distance to get him. . . . He didn’t need any high-priced counsel.”
“The brother of the defendant . . . came to see me yesterday . . . after he had been traveling all over this Northern Wisconsin, pretty near. Why he came to me I don’t understand. If he knew anything about matters he knew better than that. No use to see me. What he needed was a lawyer to try defendant’s case. These cases are going to be tried in short order.”
• “The witnesses for the State have been here now for a week to ten days — detained here at the expense of the county. They came from Chicago. The longer they are detained the higher the expenses. If we are not able to go ahead with the case this afternoon it means that the county of Oneida will pay for a jury in attendance with no work done.”
“. . .1 understand your position, Mr. Smith. You deserve the time. The defendant is deserving of nothing, so far as I can see.”
“This dilly-dallying will not go on any longer.”
While such remarks should not have been made when it was at all possible for members of the jury panel to overhear them, it does not appear that the remarks were so made. The record reveals that no objection to the remarks was made by counsel at the time. The record being silent as to the presence of members of the panel, we are inclined to believe that the able, fair, and experienced trial court would not be guilty of such impropriety in the presence of prospective jurors. In any event the remarks were not in any sense prejudicial to the defendant herein. They related to Brice.
The defendant next contended that certain remarks of the court, in ruling on evidence, were prejudicial to the defendant in that they manifested an unfair attitude of the court toward both defendants. The remarks complained of are the following:
“The Court: She has answered you.” . . .
“The Court: She has so stated; that is unnecessary.”
*244 “The Court: No, it is proper to show the condition of these girls at the time. Go on.” . . .
“The Court: She has'answered you that she was never there and didn’t know.” . . .
“The Court: We have a lot of details here we don’t want to waste time on.” . . .
“Mr. Eakin: I don’t know what seems to be the commotion out here, but I object to the laughing and comments back there in front of the jury.
“The Court: I didn’t notice anything of the kind.
“Mr. Eakin: I strenuously object to it. Back here in this corner, every time I ask a question, there seems to be a delight in commenting on it — laughing and expressions of delight.
“The Court: I am not aware of anything of the kind. I have been looking out here, Mr. Eakin. I want the people to understand here there will be perfect order or we will remove you.” . . .
“The Court: I don’t think that is of any consequence. That hasn’t anything to do with the issues in the case. I don’t want to distract the jury’s attention from what they are to decide.” . . .
“The Court: ... If the witness were to die here on the stand you would be denied that privilege.” . . .
“The Court: If you have anything further to say, do so.” . . .
“A. They didn’t have enough on.
“The Court: Well, that might be the opinion of many of us or none of us. That don’t help us a bit.
“The witness: They shouldn’t go out in the wind without at least knickers or bloomers on.” . . .
“The Court: I think we are really taking too much time in the identification of that car. I don’t regard it as very material.” . . .
We have carefully considered all of these remarks in connection with the questions and answers to which they relate, and we are unable to find therein anything of a prejudicial nature.
The next contention is that there is no evidence to support the verdict of the jury so far as the defendant is con
In Vogel v. State, 138 Wis. 315 (119 N. W. 190), it was held (p. 335) with reference to what a person must do in order to be guilty of the crime of rape as an aider and abettor, that the following instruction was proper in that case:
“In order to render himself so responsible, he must himself in some way aid or assist the other in overpowering the female or in effecting a particular act of intercourse under circumstances such as to make such act rape.”
This instruction was claimed to be erroneous because the jury was not informed that the person aiding and abetting must be actively or constructively present at the commission of the offense, but this court held that the charge was neither misleading nor prejudicial.
In State v. Brooks, 138 Wis. 560, 120 N. W. 226, a question was reported to this court for answer. From the reported case it appears that two defendants were charged
In In re Carlson, 176 Wis. 538 (186 N. W. 722), at p. 549 it was said:
“It is . . . well settled that one who is present aiding and abetting in the commission of a felony may be informed against as a principal and convicted as a principal, although he may have been guilty only of assisting in the commission of the offense.”
People v. Marx, 291 Ill. 40, 125 N. E. 719, is a case in which, the crime of rape was committed in an automobile and in which case the law as to aiders and abettors was discussed. It was there said (p. 48) :
“It cannot be contended, of course, that mere presence at the commission of a criminal act renders a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent and does no act to countenance or approve the acts of those who are actors, he is not criminally responsible because he happens to be a looker-on and does not use active endeavors to prevent the commission of the unlawful acts. ‘Notwithstanding these rules as to the non-liability of a passive spectator, it is certain that' proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval and was thereby aiding and abetting the same.’ (1 Ruling Case Law, p. 141, and authorities there cited.) It is clear that the plaintiff in error, Alex Marx, who was driving the automobile, did not in any way*247 take part actively in the holding of the prosecutrix at the time when she charges the acts were being forcibly committed, but the evidence shows without contradiction, and he himself admits, that he drove the car several miles out of the way in Chicago while going from the cabaret to the hotel at Wabash avenue and Eighteenth street. His acts in this regard tend to show that he was actually encouraging and approving what was being done in the car.”
We conclude that the record herein contains ample evidence to support the verdict of the jury and to sustain the conviction of the defendant as an aider and abettor.
The defendant contends that the court erred in charging the jury. • We have carefully considered the whole charge and perceive no error or prejudicial instructions therein. The defendant particularly complains because the court in its instructions, after stating to the jury that the State claimed that Brice had committed the crimes of rape in Oneida county, and that the defendant was present and aided and abetted him in the commission thereof, stated: “It is not claimed that the defendant Scheldberger had sexual intercourse with Miss Formella in Oneida county.”
There was no evidence offered even tending to prove that the defendant had any intercourse with Miss Formella., There was considerable testimony relating to the events which transpired in Vilas county, where the car made its final stop, when Clara was assaulted, and when the girls ran into the woods. The court no doubt intended by the instruction complained of to confine the jury’s consideration strictly to the events which were claimed to have occurred in Oneida county. We perceive no error in this instruction.
It is further contended that the court erred in admitting in evidence three photographs taken of Terry’s bare legs from her knees down, which photographs show scratches
Defendant charges in his brief that the district attorney, in his closing argument to the jury, argued “that the defendant Scheldberger did not dare to take the stand in his own behalf,” and further declared, “No wonder defendant Scheld-berger did not care to testify; his clever, astute attorneys knew better than to put him on the stand.” It is claimed in defendant’s brief that the remarks were objected to and that the objection was sustained by the court. However, there is nothing in the record, which includes the affidavits presented on the motion for a new trial, to show that such remarks were ever made. The State in its brief denies that such statements were made, and the district attorney upon the oral argument vigorously denied ever making any such statements. We therefore do not feel called upon, in view of the state of the record, to pass upon this claim of error.
Defendant finally claims that since it appears from the cross-examinations of certain of the State’s witnesses that Charles Center Case, a Chicago attorney, had investigated the case as a friend of Terry Formella and had taken statements from certain of the witnesses who had returned to Chicago, after leaving the Syms cottage in Northern Wisconsin, the defendant was prejudiced. State v. Peterson, 195 Wis. 351, 218 N. W. 367. There is nothing in the record from which it may be concluded that Mr. Case rendered any material aid to the district attorney in preparing
“This conclusion does not mean that a district attorney may not consult with parties interested in the prosecution of criminal cases, nor with attorneys who are under pay investigating the facts involved in the criminal prosecution. But it does mean that attorneys cannot be employed by private parties for the purpose of prosecuting criminal cases, whether the services are rendered in the court room, in the trial of the case, or in the office preparing the case for trial.”
The affidavit of the district attorney, which was filed and used on the motion for a new trial, completely negatived the claim that Mr. Case assisted at all in the preparation of the case for trial.
Complaint is also made that George E. O’Connor, district attorney of Vilas county, assisted in the preparation of the case for trial. It appears that Mr. O’Connor, as district attorney of Vilas county, investigated the whole affair, particularly with a view to determine whether an offense had been committed within his county; that he conferred at different times with District Attorney Kennedy; and that he was present throughout the trial of this action but took no part therein other than to testify as a witness. The affidavit of the district attorney hereinbefore referred to denied that Mr. O’Connor had assisted him in preparing the case for trial. It is not perceived just why, in a case like this, involving criminal conduct starting in one county and continuing in another, it is improper for the district attorneys
All other matters upon which error is claimed to be predicated have received our careful attention with the' result that no prejudicial error has been found. The entire record has been carefully read and we cannot say that the verdict of the jury is not sustained by the evidence or that justice has not been done.
By the Court. — Judgment affirmed.