60 Wis. 599 | Wis. | 1884
1. The .verdict is general, and is not limited by the insertion therein of the words “ of receiving stolen money, goods, and chattels.” They were used to express, in general terms, the offense charged in the information, and it would be absurd to give them the effect of eliminating from the verdict an essential ingredient of that offense. The words were unnecessary in the verdict. They neither add to nor detract therefrom. By any reasonable or sensible construction the jury have found the defendant “guilty in manner and form as charged in the information.” That is sufficient. The first question must be answered in the affirmative.
2. The second question has reference to sixteen instructions prayed on behalf of the defendant, which the court refused to give. A proper consideration of these (or, at least, most of them) renders it necessary that we should have all the testimony before us. There is no bill of exceptions here, and cannot properly be one on a report. Moreover, this is a summary proceeding to obtain, before judgment, a speedy decision by this court of important and doubtful questions of law arising on the trial, and such questions must be specifically stated. There are numerous questions of law involved in the instructions which the court refused to give the jury, and we are not informed by the report which of them the learned circuit judge deemed so important and doubtful as to require the decision of them
3. The original information contained but a single count. The first paragraph, which counsel on both sides seem to regard as a separate count, is nothing more than a statement ■of the fact essential in an information for receiving stolen property, that the property therein described had been stolen. Of course, there could be no felonious receiving of stolen property unless the same had been stolen, and it was necessary to aver the fact of stealing in order to charge the crime of receiving. In the statement of the larceny there is a failure to aver who stole the property, or to negative knowledge as to who was the thief. This is the only defect we discover in the original information, and the amendment thereto worked no change thereof, other than to supply that omission, which was probably purely clerical. We think the statute authorizes such an amendment, and that if the prosecuting counsel failed to discover the omission, it was proper for the court, without motion, to order the amendment made.
The law does not require the trial judge to sit as a mere figure-head in a criminal trial. It does not compel him to let the trial proceed, perhaps for days or even weeks, when he knows that, through some blunder in preparing the information, a conviction cannot be upheld. lie may, in such a case, if the statute reaches the defect, direct an amendment, whether the district attorney asks leave to make it or not, and thus save the trial from being a useless and expensive waste of time.
To the third question, therefore, we answer that the information was properly amended.
4. The fourth question will not be answered, because the report fails to show any grounds for arresting judgment.
By the Court.— It will be certified to the circuit court that the questions submitted are answered as above.
