Smith v. State

195 Wis. 555 | Wis. | 1928

Doerfler, J.

The defense of the defendant Smith is extremely novel, and counsel in their diligent search for cases based on similar facts have found and submitted none. The defense of lack of intention frequently arises in prosecutions for forgery, for uttering forged paper, for receiving stolen property, and other similar offenses, but there certainly seems to be a marked dearth of authorities on the subject of burglary, where the breaking and entry is in the nighttime, and where the person charged with the offense actively participates in the removal of the goods, and at the time of his arrest is found in possession of part of the stolen property. But be that as it may, the element of intention must be shown in a criminal case like this, and proven beyond a reasonable doubt.

The first error upon which defendant’s counsel relies is based upon the refusal of the court to grant the defendant a separate trial, for the reason that the defendants advanced and relied upon separate, distinct, and antagonistic defenses. As has already been said, the defense of the defendant Smith consisted of his claim that there was lacking the criminal intent while participating in the alleged burglary, and the defendant Casperson advanced and pressed as his defense an alibi.

The granting or refusal of a separate trial of defendants in a criminal case rests largely in the discretion of the court, where the offenses arise out of the same transaction. Joint trials ordinarily facilitate the speedy administration of justice, and on an application for separate trials the issue presented to the court and which it is called upon to determine consists of the question whether justice will be done by. granting the motion. In the instant case the court had the broadest and most comprehensive view of the actual situation disclosed by the evidence upon the first trial. With the facts before it, it denied the application. Had the defendant Casperson complained of the refusal of the court to grant a new trial a somewhat different situation would be presented, for he denied being present at the time of the commission of the burglary, and also his participation in the offense. But the defendant Smith admitted his presence upon the night in question; also admitted that he had on his person and in his possession part of the stolen property when he was taken into custody. This left for the defendant Smith the only defense conceivable under the situation, viz. that there was no intent to commit a crime.

We are therefore led to the conclusion that the trial court . properly exercised its discretion when it denied the application, and that such denial was not prejudicial to the defendant, and that it promoted the administration of justice.

Experience has taught the members of the legal profession and trial judges that where a number of defendants are jointly charged with the commission of a criminal offense, and where they are jointly tried, as a rule marked discrepancies appear in their testimony when they testify in their own behalf. A number of insignificant discrepancies are called to the attention of . this court in order to fortify the defendant’s position that separate trials should have been granted. We are convinced that some of these discrepancies alleged are nonexistent, and that the others are of such a trivial nature that no special consideration need be granted them in this opinion.

The further claim is made by defendant’s counsel that the court erred in the admission of evidence tending to prove other offenses. In the consideration of this alleged error the sole defense of the defendant Smith must be prominently borne in mind. The general rule that other offenses cannot be proven was established in the early history of the common law, and has obtained practically in all jurisdictions up to the present time. In 8 Ruling Case Law, p. 198, § 194, subject “Criminal Law,” it is said:

“The general rule is, that when á man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon his trial, must be excluded. It is deemed to be not proper to raise a presumption of guilt, on the ground that, "'having committed one crime, the depravity it exhibits makes it likely he would commit another. It may be easier to believe a person guilty of one crime if it is known that he has committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It might lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it,- and to uniting evidence of several offenses to produce conviction for a single one.”

In the same volume, on the same subject, sec. 197, one of the exceptions to the above rule is stated as follows:

“Where a felonious intent is an essential ingredient of the crime charged, and the act is claimed to have been innocently or accidentally done, or by mistake, when the result is claimed to have followed an act lawfully'done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain. . . . Again, it is competent to show that the crime charged was part of a common scheme or plan which included numerous offenses. . .If the question is whether a given act was accidental or intentional, the fact that the actor has at numerous times performed similar acts under circumstances forbidding the idea of accident is very strong proof that the act under investigation was also intentional.”

See, also, 16 Corp. Jur. 589; Dawson v. State, 32 Tex. Crim. Rep. 535, 25 S. W. 21, 40 Am. St. Rep. 792; Dietz v. State, 149 Wis. 462, 136 N. W. 166; Fossdahl v. State, 89 Wis. 482, 62 N. W. 185; Paulson v. State, 118 Wis. 89, 94 N. W. 771; Fenelon v. State, ante, p. 416, 217 N. W. 711, 218 N. W. 810.

The authorities are now practically uniform in holding that where the offenses are committed pursuant to a general scheme and under circumstances like those disclosed in the evidence in the instant case, the testimony of such other offenses may be admitted to show intent.

It is our view that there was ample evidence in this case to warrant the jury in rendering a verdict of guilty. The association of the three participants during the period of their operations was unlawful from the beginning to the end; in fact, they entertained no other purpose than the commission of crime. The defendant claims that liis efforts were directed against the commission of crime, and that he made this manifest by his verbal attempts at persuasion; but notwithstanding his protestations, his acts clearly manifested active participation, and participation, as admitted by the defendant himself, nullifies completely any verbal protestations. There is no evidence in the case that the defendant notified the public authorities of his alleged purpose or that notification had been made to any one else before his arrest. Under these circumstances it is almost inconceivable that the jury could have arrived at any other verdict than that which was returned into court.

By the Court. — Judgment of the lower court is therefore affirmed, and the cause is remanded for further proceedings according to law.