221 Wis. 444 | Wis. | 1936
The defendant, Orville Johnson, appeals from a judgment convicting him of violating sec. 340.39, Stats., in that on February 23, 1935, in Waupaca county, he did assault and feloniously rob and steal from the person of John J. Dempsey and the cash register of Theresa Selvog, lawful money, being then and there armed with a dangerous weapon, to wit, a loaded revolver, with intent, if resisted, to kill or maim the person robbed, contrary to sec. 340.39, Stats. That offense was charged in the first of six counts, the substance of which appears in the preceding statement. The court took a verdict in relation to only the first count.
In appealing from that judgment, defendant contends that there is no credible evidence to support the conviction; and that it rests upon the uncorroborated testimony of Thomas Konczal and Elroy Scheikert, alleged accomplices, whose testimony is shown by the record to be wholly without evi-dentiary value. In passing upon that assignment of error, the following facts, established without dispute, should be noted at the outset: Between 11 and 12 o’clock, p. m., on Saturday, February 23, 1935, Theresa Selvog, who operated a tavern located three miles east of Clintonville on Highway No. 156, and John Dempsey and another patron at the tavern were held up and robbed by Thomas Konczal and Elroy Scheikert, who, after brandishing loaded revolvers and ordering Mrs. Selvog and the patrons to hold up their arms and face the wall, searched them and the premises. While Konczal and Scheikert were committing that robbery in the
In addition to the evidence which established those undisputed facts, there was sufficient credible and corroborating evidence to establish the following facts beyond any reasonable doubt, although they were disputed by Johnson, to wit: Johnson accompanied Konczal, Scheikert, and Nerod on that trip to Mrs. Selvog’s tavern pursuant to prior conversations and a conspiracy between them, pursuant to which they in
Those facts, if found by the jury beyond a reasonable doubt, although they were disputed and denied by Johnson, were sufficient to establish his participation in the robbery with knowledge on his part of his associates’ intentions, before leaving Milwaukee to commit the robbery at a tavern
Johnson also assigns error in respect to rulings by the court restricting his counsel’s cross-examination of Konczal in relation to the latter’s former testimony on the preliminary examination. Counsel, instead of first putting the usual questions to Konczal for the purpose of laying a foundation for impeaching him by subsequently introducing contradictory or conflicting former testimony, given by him at the preliminary examination, insisted on asking the following questions: “You want to claim now you did not tell the truth at that time ? Do you want to tell us that the testimony you gave down there is the same as you gave here ? Did you try to tell the truth?” The court rightly, in the proper exercise
Johnson also assigns as error a ruling sustaining an objection to his counsel’s question to Konczal: “When did you and Elroy [Scheikert] first plan this holdup of this tavern at Germantown? How long before you held it up?” Johnson contends the answer would have been material because if Johnson participated in the robbery at the Selvog tavern, his confederates would have asked him to participate in the Ger-mantown robbery, instead of having other confederates. As there was no connection between the crime charged herein and the robbery at Germantown, Scheikert’s and Konczal’s reasons for not asking Johnson to participate in the latter were not relevant. Johnson was not entitled to prove those reasons as a matter of right, and there was no abuse of discretion on the part of the court in not permitting cross-examination on that subject.
Error is furthermore assigned on the ground that the court did not instruct the jury that in order to convict the defendant under the first count, charging assault and robbery in violation of sec. 340.39, Stats., it was necessary for the jury to be duly convinced also that the robber was armed with a dangerous weapon “with intent, if resisted, to kill or maim the person robbed.” Instead of explicitly instructing the jury as to the necessity for finding the existence of that essential element in order to convict, the court, in so far as any reference to that element is concerned, merely read the allegations in the first count in the information which, after stating the commission of the robbery, charged that it was committed while armed with “a dangerous weapon, to wit, a loaded revolver, with the intent, if resisted, to kill or maim the person robbed, contrary to the provision of sec. 340.39.” And, in immediate connection with reading that count, the court merely read sec. 340.39, Stats., including the words therein, “such robber being armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed, . . . shall, be punished.” But nowhere in the charge was the jury’s attention called by the court to the necessity of finding, in order to convict on the first count, that the rob
Several other assignments of error have been given due consideration and found without merit, excepting that because of the incomplete state of the record it is impossible to determine whether prejudicial error resulted in the following respect: The appellant contends that the district attorney in his argument to the jury said: “Why don’t the attorney for Orville Johnson call Blackie [meaning Frank Nerod]. We can’t call him because we can’t make him testify. He has constitutional rights.” Although, if that statement was made,
It follows that because of the errors which were prejudicial for the reasons stated above, the appellant is entitled to a new trial.
By the Court. — Judgment reversed, and cause remanded with directions to> grant a new trial.