STATE, Respondent, vs. MEYER, Appellant.
Supreme Court of Wisconsin
December 7, 1950-February 6, 1951
258 Wis. 326
Miller was engaged in the business of operating carnival companies and furnishing rides. He personally took the contract to operate the carnival at Racine. He intended to fulfil this contract with one of the two units operated by himself. When Miller arranged with Kelly to operate a carnival unit at Racine to fulfil Miller‘s contract Kelly was an independent contractor doing work ordinarily and customarily done by Miller, and the provisions of the above section of the statutes are applicable. Under that statute Miller and his insurance company are liable for the payment of compensation to O‘Harris, who was an employee of Kelly.
By the Court.-Judgment reversed and cause remanded for further proceedings consistent with this opinion.
STATE, Respondent, vs. MEYER, Appellant.
December 7, 1950-February 6, 1951.
For the respondent there was a brief by the Attorney General, William A. Platz, and Roy G. Tulane, assistant attorneys general, and Lewis J. Charles, district attorney of
FAIRCHILD, J. As appears from the foregoing statement of facts, the defendant has been found guilty under an information in which he is accused of certain violations of the game laws and in addition for the purpose of fixing a penalty alleges “That the said Victor Meyer was, on the 16th day of May, 1931, convicted in the circuit court for Lincoln county, Wisconsin, of the offense of the crime of robbery by means of firearms, the said Victor Meyer having entered a plea of guilty to said charge; that upon said plea of guilty, and the adjudication of guilt thereon, the said Victor Meyer was duly sentenced to the Wisconsin state reformatory at Green Bay, Wisconsin, for the general or indeterminate term of not less than three years nor more than ten years, the term of imprisonment to commence at twelve o‘clock noon of the 16th day of May, 1931.”
On this appeal the defendant directs our attention to certain claimed errors and urges that at least he should be granted a new trial. We do not deem it necessary to recite the testimony further than it is set out in the statement of facts. The evidence reviewed shows conclusively that the defendant did commit the acts charged, and also that he was the one who was previously convicted and sentenced to the reformatory. We find nothing that would warrant a conclusion that the jury were misled as to any issue, or that anything which occurred can be held to be prejudicial error.
There is in the instructions to the jury a misstatement. The court in effect said that the defendant stated that he had been hired by both Tilch and Hendrickson to trap for them. The state concedes that that instruction contains a misstatement, because Meyer claimed that he had not been hired by Tilch, although the evidence is that he did receive his tags. There was testimony to the effect that when Tilch turned in twelve hides which were ostensibly Tilch‘s, it was found that
All questions pertaining to the guilt of the defendant were thoroughly presented to the jury, and the facts and circumstances disclosed by the entire record do not bring any special significance to the use of the words “these men” which were used with relation to the hiring of the defendant instead of the words “this man.” There were other criticisms of the instructions, but the evidence being as certain as the jury found it to be leaves no room for holding that the defendant was not fairly tried and properly found guilty. The evidence too clearly shows that the defendant had transgressed the provisions of the game law as set out in the information to hold otherwise than that it would be far from prejudicial error to make a slight mistake in saying whether he had claimed to be hired by one man or two. And if there was any overbalancing of the scales it was in defendant‘s favor. Consideration has been given to the question which arose upon the argument as to the manner of the proceedings upon the trial and the use made of
The overruling of the defendant‘s contention that he was not liable to punishment under the repeater statute, although he had theretofore been convicted of robbery being armed, is
“Mr. Charles: I have here, Your Honor, a certified copy of a sentence from the circuit court for Lincoln county, showing the sentencing of the defendant on the 16th of May, 1931, to a term of imprisonment-
“By the Court: Term of imprisonment? Where?
“Mr. Charles: At the Wisconsin state reformatory at Green Bay, Wisconsin.
“Mr. Curran: I object to that, Your Honor, before the jury, that is not proper jury evidence, it should be presented to the court if it all.
“By the Court: Objection is overruled. Why is it?
“Mr. Curran: Prejudicial, Your Honor.
“By the Court: Of course it is prejudicial.
“Mr. Curran: It doesn‘t come into the jury‘s part of the case at all?
“By the Court: Yes, that is part. Sometimes the defendant admits these things and then we don‘t introduce them, but if the defendant doesn‘t, then of course it has to be proved.
“Mr. Curran: He hasn‘t been asked?
“By the Court: He hasn‘t offered.
“Mr. Curran: He hasn‘t had a chance?”
The record does not show any offer to admit the conviction. The proceedings continued:
“Mr. Charles: I will offer this sentence-certified copy with the certificate to the effect that such conviction remains of record and unreversed, in which the defendant Victor Meyer was sentenced to a term of imprisonment in the Wisconsin state reformatory at Green Bay, Wisconsin, for not less than three nor more than ten years.
“Mr. Curran: May we have the date of that?
“Mr. Charles: 16th of May, 1931. It has been marked by the reporter as plaintiff‘s Exhibit No. 1, and I offer Exhibit No. 1 in evidence.
“Mr. Curran: I will object to Exhibit No. 1 on the grounds that it is not within the indictment in this case.
“By the Court: It is set out in the information, isn‘t it?
“Mr. Curran: Pardon?
“By the Court: Isn‘t it alleged in the information?
“Mr. Curran: Yes.
“By the Court: Well, then it is in there; objection is overruled and it will be admitted.”
His previous conviction, although an offense other than that covered by the game law, was subject to proof under the provisions of the general repeater statute,
”
359.14 When any person is convicted of any offense punishable only by imprisonment in the county jail or by fine, or both, and it is alleged in the indictment, information, or complaint and proved or admitted on the trial . . . that he had been before sentenced to imprisonment, either in any state prison, state reformatory, house of correction, or county jail, by any court of this state or of any other state or of the United States, and that such sentence remains of record and unreversed, whether pardoned therefor or not, such person may be punished by imprisonment in the county jail not less than the shortest time fixed for such offense and not more than one year, or by imprisonment in the state prison not more than three years nor less than one year.””
29.635 (1) When any person is convicted of any violation of this chapter or any conservation commission order, and it is alleged in the indictment, information, or complaint, (and proved or admitted on trial). . . that he had been before convicted for a violation of this chapter or of a conservation commission order, by any court of this state such person shall be fined not less than $50 nor more than $100, or imprisoned not less than ten days nor more than six months or both. In addition thereto, all licenses issued to such person pursuant to this chapter shall be revoked and no license shall be issued to him for a period of one year thereafter.”
There is also a statute providing for the alleging and proving of a prior conviction referred to in the case of Green Bay Fish Co. v. State
The defendant‘s conviction of a prior offense being other than one penalized under
In considering the imposition of the penalty, discussion of the proper procedure under the statute has arisen. The statute (
In 24 C. J. S., under title, Criminal Law, at p. 1156, sec. 1962, there is cited authority for the proposition that “the prosecution of an accused as a subsequent offender is for the purpose of affecting the punishment in the event of conviction, and ordinarily the former convictions must be proved and the identity of the accused as the person convicted must be established.”
The constitutionality of that statute has never been seriously questioned in this state. The practice has grown up in this state which was followed by the trial court, as appears from the proceedings set out above. The interpretation of this statute as found in practice and decisions gives us the rule. It is urged that the practice has not been challenged. But the practice has frequently been met with, considered, and approved. If the defendant does not admit the prior
In the case of Howard v. State (1909), 139 Wis. 529, 533, 121 N. W. 133, it was held that where the defendant admitted the truth of the allegations concerning the previous conviction, it is error to admit evidence thereof and to permit comment thereon to the jury. It is there said by Mr. Justice SIEBECKER in the opinion of the court, pointing out the difference between our statute and the statute of the state of New York, that the statute of the state of Wisconsin “provides that the accused may admit this allegation on the trial. This provision carries with it, necessarily, the implication that under legal procedure no proof on the subject is necessary or need be required. This provision also suggests that the legislature intended to give the accused an opportunity to avail himself of the right afforded by the law which, except in certain cases, excludes evidence of other offenses from being submitted to the jury as proof of the guilt of the accused of the specific offense for which he is on trial. It is beyond controversy that proof of former sentences of the accused must necessarily prejudice the minds of the jurors against his interest when trying him for the offense with which he is charged. It is therefore a reasonable inference from the legislative regulation giving the accused the privilege of admitting such former sentences on the trial that it was intended that evidence thereof should not be received after such admission, and that there was no issue respecting such allegations for submission to the jury. Though this
In so considering the matter, Mr. Justice SIEBECKER said (p. 534): “We are of opinion that no evidence shall be received nor comment to the jury be permitted in cases wherein former convictions and sentences, as embraced in secs. 4736-4738, Stats. (1898); are alleged when the accused admits the truth thereof on the trial.”
The procedure followed by the learned trial judge is also supported by the case of Meyers v. State (1927), 193 Wis. 126, 127, 213 N. W. 645, where Mr. Chief Justice VINJE, in discussing the terms of a repeater statute, said: “‘The prosecuting attorney shall plead and prove previous convictions of the accused for any violation of this act.’ [
“But under the facts in this case there was no error in receiving the testimony of the defendant admitting, or the record evidence proving, former convictions. He testified as to the merits, and the evidence was competent upon the question of his credibility, and the jury were expressly instructed that they could consider it for that purpose only.” See also Watson v. State (1926), 190 Wis. 245, 208 N. W. 897.
On the point of constitutionality of the repeater statute, as interpreted in the decision by Mr. Justice SIEBECKER and
And we find in the case of Dick v. United States (8th Cir. 1930), 40 Fed. (2d) 609, as appears in 70 A. L. R. 90, 92, the following: “In view of the fact that the government is required to plead the facts essential to a finding that the defendant is a second offender, the government must prove these facts the same as other allegations contained in the indictment.”
Where there has been no admission of the previous conviction, proof thereof is submitted to the jury, and the question is to be determined by the jury under proper instructions given by the court.
In the case of Ingalls v. State (1880), 48 Wis. 647, 658, 4 N. W. 785, it was distinctly held that statutes imposing a greater penalty for a second or third offense of the same character than that imposed for the first offense do not violate the constitutional provision which forbids putting one twice in jeopardy for the same offense. Mr. Justice TAYLOR there said: “The increased severity of the punishment for the subsequent offense is not a punishment of the person for the first offense a second time, but a severer punishment for the second offense, because the commission of the second offense is evidence of the incorrigible and dangerous character of the accused, which calls for and demands a severer punishment than should be inflicted upon the person guilty of a first crime.”
With regard to the doctrine of repeated crimes, a conviction may tarnish a reputation and still leave to society a citizen
The authorities in this state have recognized a procedure, and authorities in practically all the states agree with the interpretation of this statute which has been consistently followed by our courts.
We have referred to Ingalls v. State, supra, and we now call attention to the case of Paetz v. State (1906), 129 Wis. 174, 177, 107 N. W. 1090, where Mr. Justice KERWIN said: “The plaintiff in error was found guilty and sentenced to punishment as for a second offense. The complaint was clearly insufficient to warrant proof of conviction of a second offense. As has been seen, a conviction for a second offense subjected the plaintiff in error to a more severe punishment than conviction for a first offense. It is contended on the part of the state that the proof of former conviction did not go to the question of guilt or innocence of the plaintiff in error, but only to the severity of the punishment; hence that there was no necessity for any allegation of former conviction in the complaint. But the accused was entitled to be informed of the nature of the charge against him, and, since a greater
In Green Bay Fish Co. v. State (1925), 186 Wis. 330, 337, 202 N. W. 667, where the court ruled that the imposition of sentence under this statute on the basis of a prior conviction which was charged in the information but not proved was improper, it was so held because the accused was entitled to a jury trial upon the question, he not having admitted it. And Mr. Justice OWEN in the opinion for the court said: “Furthermore, the accused is entitled to a jury trial upon this question. This plain constitutional right is recognized by
By the Court.-Judgment affirmed.
GEHL, J. (dissenting). The majority considers the question whether proof of a prior conviction may be made in the
In the Green Bay Fish Co. Case only the question of whether sufficient proof of a prior conviction had been presented. The court states that proof of that fact must be made and that a defendant is entitled to a jury trial upon the issue. It does not say, however, that it must be determined by the same jury which tries him upon the immediate offense or at the time of his trial upon the charge of that offense; more will be said with respect to that phase of the problem later in this dissent.
Nothing was determined in the Howard Case except that where a defendant admits his conviction of a prior offense it is error to receive evidence thereof in the presence of the jury trying him upon a charge of the second or specific offense. Incidentally, the court, by its language and its conclusion, recognizes that such proof is “highly prejudicial” to the rights of the defendant.
In the Meyers Case it was held that under the circumstances there shown it was not error to permit the state to cross-examine the defendant as to former convictions after he had admitted them. It should be observed that the court pointed out in that case that in any event the evidence of prior conviction was competent upon the question of defendant‘s credibility. No other issue was raised or determined.
In the Watson Case the court had for consideration only a matter of pleading and the question whether in the application of the “repeater” statute a charge in the information of previous conviction is the statement of a substantive offense.
Nothing can be read out of the Spoo Case with respect to the “repeater” statute except that it was determined that failure to charge a previous conviction in the information does not defeat the right of the court to invoke the statute when at the trial the defendant has admitted the conviction.
In the Ingalls Case there was nothing for consideration except the question of the validity of a repeater statute.
In the Paetz Case it was held that an accused is entitled to be informed of the nature of the charge against him, and that because of failure to plead a former conviction it was error to permit proof thereof. The case is authority for nothing else.
None of these cases deals with the precise question which we have here for consideration, nor have I been able to find one in which this court has been required to determine it.
There can be no quarrel with the conclusion of the majority that to permit the court to impose an additional sentence upon a previous offender, in the absence of his failure or refusal to admit his earlier offense, there must be proof thereof. I disagree, however, with its determination of the manner in which proof may be made.
I am of the opinion that the court erred in permitting the state to show in its presentation of the case and in the presence of the jury, the fact of defendant‘s conviction of an offense in 1931. Manifestly, it was not nor could it have been offered for the purpose of impeachment; defendant had not yet taken the stand. At that stage of the trial it had no place in the case except as it might have been received
The purpose of permitting such proof is disclosed in the provisions of
- It appears in the chapter entitled “Judgments in Criminal Cases and Execution,” with neither of which the jury has anything to do;
- The section itself is entitled “Sentence of persons previously convicted,” again indicating that it was intended to deal with a subject with which a jury is not to be concerned;
- It does not create a new substantive offense and does not contemplate that it be considered by the jury as an element of the offense charged and required to be proved.
The provisions of this statute are incorporated as a part of the law of judgments in criminal cases and the execution thereof.
“This indicates that the legislature did not regard it as part of the criminal code which defines offenses, but treated it as a part of the criminal law regulating the sentence and judgment in cases where persons are guilty of successive state prison offenses.” Howard v. State (1909), 139 Wis. 529, 532, 121 N. W. 133.
The court should hesitate to abandon the rule granting to an accused the fundamental right to be tried only upon evidence which bears upon the specific offense charged against him-an ancient right firmly imbedded in our jurisprudence-and one as valuable to the body of society as it is to the individual on trial. Important to society, because if we permit it here, where it it may seem on account of the apparent guilt of the defendant that he has not been prejudiced, it is at least possible that it may be permitted in the case of an innocent person accused of a violation.
“From the time when advancing civilization began to recognize that the purpose and end of a criminal trial is as much to discharge the innocent accused as to punish the
Nor should we assume that the legislature in adopting the provisions of the “repeater” statute intended to abandon the safeguard. It stated its purpose in language and form to permit proof of a prior conviction solely for the purpose of empowering the judge to deal differently with a first offender than he might with one of incorrigible and dangerous character. The habitual criminal is, under our system, entitled to the same fair trial as is the first offender.
The majority does not, it cannot, doubt that proof in the presence of the jury of such extraneous matters as the habits, the tendencies, and the previous record of an accused operates to his prejudice. That is known to us as a matter of everyday experience. No one would have the hardihood to suggest otherwise.
“It is beyond controversy that proof of former sentence of the accused must necessarily prejudice the minds of the jurors against his interest when trying him for the offense with which he is charged.” Howard v. State, supra (p. 533).
Referring to former cases this court has said:
“They are cited more especially to show how uniformly courts have held that one cannot be deemed to have had fairly tried before a jury the question of his guilt of the offense charged when their minds have been prejudiced by proof of bad character of accused or former misconduct, and thus diverted and perverted from a deliberate and impartial consideration of the question whether the real evidentiary facts fasten guilt upon him beyond reasonable doubt. In a doubtful case even the trained judicial mind can hardly exclude the
Certainly society is entitled to protection against the chronic offender and to treatment of his case upon a basis different from that which is accorded one charged with a first violation. That distinction calls for the process which is provided by the “repeater” statute-a process, the need for which has long been recognized and for quite some years has been available to the courts. But the right of society to such protection is of no greater moment than is the right of its members to a fair trial upon evidence which bears upon the offense with which they may be charged. Even those who insist that proof of a prior conviction may be offered in the presence of the jury recognize that such proof must necessarily influence the minds of the jury in its determination of the guilt or innocence of an accused of the charge for which he is being tried. The right to trial by an unprejudiced jury is just as important to an accused, and to society itself, as is the right of the body of the people to the removal of one who because of his habits has become a menace to society.
Not much would be left of the burden to prove guilt if we were to permit a jury upon the trial of one charged with a specific offense to be influenced by such extraneous matters as his habits, his record, and his tendencies. The innocent person subjected to trial should not be required to overcome the prejudice which follows inevitably from proof of an offense committed earlier. The possible injustice of such procedure is demonstrated quite clearly in this case where the prior conviction had been had nearly nineteen years before the specific offense here charged.
As has been noted, the court in the Green Bay Fish Co. Case stated that a defendant is entitled to a jury trial upon
“. . . in State v. Reilly, 94 Conn. 698, 110 Atl. 550, we further said, on page 705, that in such an information ‘two separate issues are presented: First, was the defendant guilty of the crime charged? This relates to the crime only. Second, if guilty, had the defendant twice before been convicted, sentenced, and imprisoned? This relates to the penalty only, and does not involve or state any other or different crime from that first stated. The jury must by their verdict answer each of these issues.’ This plainly indicates that the first issue should be taken up and tried by the jury first and separately; and, if the accused be found guilty on this issue, then the second issue should be tried; . . . In the absence of statutory regulation in this state, it is our opinion that a procedure similar to that prescribed by an English statute (24 & 25 Vict. c. 99, s. 37) should be followed. Reg. v. Martin, L. R. 1 Cr. C. 214. The information should be divided into two parts. In the first, the particular offense with which the accused is charged should be set forth; and this should be upon the first page of the information and signed by the prosecuting officer. In the second part, former convictions should be alleged, and this should be upon the second page of the information, separable from the first page, and signed by the prosecuting officer. The entire information should be read to the accused and his plea taken in the absence of the jurors. When the jury has been impaneled and sworn, the clerk should read to them only that part of the information which sets forth the crime for which the accused is to be tried. The trial should then proceed in every respect as if there were no allegations of former convictions, of which no mention
should be made in the evidence, or in the remarks of counsel, or in the charge of the court. When the jury retire to consider their verdict, only the first page of the information, on which the crime charged is set out, should be given to them. If they return a verdict of guilty, the second part of the information, in which former convictions are alleged, should be read to them without reswearing them, and they should be charged to inquire on that issue. Of course, the accused may plead guilty to this part of the information, and then no further proceedings before or by the jury would be necessary. No reason appears why the accused, if he should choose, might not submit this issue to the court without the jury. In this way the well-recognized rights of an accused person will be protected, and the principles of justice and our long-established laws, which have been designed to secure an impartial trial in every criminal cause will be recognized, respected, and obeyed.” See also McWhorter v. State (1903), 118 Ga. 55, 44 S. E. 873.
Nothing in our statute would prevent the use of the practice here recommended. The statute directs that the prior conviction shall be “alleged in the information and proved or admitted on the trial.” A trial is not concluded until judgment is pronounced.
I agree with the majority that the repeater statute, if properly applied, is valid. That is settled by the Ingalls Case. But to give sanction to the practice here approved suggests a doubt as to the validity of the statute, at least when so applied. When a court is called upon to deal with due process of law consideration should be given to fundamental rules of practice and evidence which have long been a part of the common law.
Because of the manner in which the previous conviction was allowed to be proved in this case a new trial should be ordered.
I am authorized to say that Mr. Justice HUGHES concurs in this dissent.