195 Wis. 351 | Wis. | 1928
The state does not challenge the fact,that it is the established rule in this state that the participation in the trial of a criminal case in court by an attorney paid by private parties is error sufficient to vitiate the conviction. But it is claimed by the state that the assistance given in the trial of this case was not such as to come within the
It is clear that the statute contemplates such preparation for trial, for sub. (2) o-f sec. 59.44, Stats., provides that when a judge appoints counsel to assist the district attorney in the trial of a case it may allow $25 per day for each day actually occupied in the trial, but not to exceed $15 per day and for not more than five days actually and necessarily occupied in preparing for trial. Thus it seems quite clear
Sec. 59.47 makes it the duty of the district attorney to prosecute or defend “all actions, . . . civil or criminal, in the courts of his county in which the state or county is interested or a party; and when the place of trial is changed in any such action or proceeding to another county, prosecute or defend the same in such other county.” Sec. 59.44 provides:
“When there is no district attorney for the county, or he*355 is absent from the court, or has acted as counsel or attorney for a party accused in relation to the matter of which the accused stands charged and for which he is to be tried, or is near of kin to the party to be tried on a*criminal charge, or is unable to attend to his duties, the circuit court, by an order entered in the minutes stating the cause therefor, may appoint some suitable person to perform, for the time being, or for the trial of such accused person, the duties of such district attorney, and the person so appointed shall have all the powers of the district attorney while so acting.” .
Sub. (2) of the same section provides that the court “may, in the same manner, and in its discretion, appoint counsel to assist the district attorney, in the prosecution of persons charged with crime punishable by imprisonment in the state prison, and in cases of prosecutions before a grand jury, and upon indictments found by grand juries and in bastardy cases. Such counsel shall be paid such sums as the court, by order entered in the minutes, certifies to be a reasonable compensation therefor, which sum shall in no case exceed twenty-five dollars per day for each day actually occupied in such prosecution, and not to exceed fifteen dollars per day for not more than five days actually and necessarily occupied in preparing for trial in any one case, the same to be paid in the manner provided by law for the payment of counsel for indigent criminals.” And sub. (3) of the same section reads:
“When there is an unusual amount of civil litigation to which the county is a party or in which it is interested, the circuit court may, on the application of the county board, by order filed with the clerk of said county, appoint an attorney or attorneys to assist the district attorney and fix his or their compensation.”
Sec. 59.46 provides for assistance for the district attorney in other than special counties, and sec. 346.57 provides that the district attorney shall not office with other attorneys than partners.
It will be seen from these statutory provisions that the
In an early day in. England private parties prosecuted criminal wrongs which they suffered. They obtained an indictment from a grand jury, and it became the duty and the privilege of the person injured to provide a prosecutor at his own expense to prosecute the indicted person. Our scheme of government has changed all this. It is now deemed the better public policy to provide for the public prosecution of public wrongs without any interference on the part of private parties, although they may have been injured in a private capacity different from the general public injury that accrues to society when a crime is committed. So under our system we have private prosecution for private wrongs and public prosecution for public wrongs. Our scheme contemplates that an impartial man selected by the electors of the county shall prosecute all criminal actions in the county unbiased by desires of complaining witnesses or that of the defendant.
In Biemel v. State, 71 Wis. 444, 450, 37 N. W. 244, this subject is treated at length, and the court there says:
“We think it is quite clear from the reading of our statutes on the subject, as well as upon public policy, that an attorney employed and paid by private parties should not be*357 permitted either by the court or by the prosecuting attorney to assist in the trial of such criminal cases. The laws have clearly provided that the district attorney, who is the officer provided by the laws of the state to initiate and carry on such trials, shall be unprejudiced and unpaid except by the state, and that he shall have no private interest in such prosecution. He is an officer of the state, provided at the expense of the state for the purpose of seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain, and holding a position analogous to that of the judge who presides at the trial.”
Cases from other states and from England are there cited to sustain the policy declared. That policy has been reaffirmed in State v. Russell, 83 Wis. 330, 53 N. W. 441; Smith v. State, 146 Wis. 111, 130 N. W. 894; and in Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164. In Rock v. Ekern, 162 Wis. 291, 156 N. W. 197, it was held that a contract which provided for the payment by Mr. Ekern to Mr. Rock in assisting in the prosecution of one Fowler was void upon the ground of public policy. Mr. Rock had rendered services in the preliminary examination of Mr. Fowler which this court held to be a part of the services contracted for, but that he could not recover- because the contract between the two was against public policy. The court says:
“The contract as proved is against the public policy of this state and the trial court erred in permitting the plaintiff to recover thereon. The acquiescence of the accused, the court, and the district attorney to allow plaintiff to assist in the prosecution of Fowler under his private employment by defendant does not purge the co'ntract of employment of its illegal character and affords no "excuse to enforce it.”
It is not quite clear how muph Mr. Grubb of Janesville participated in the preparation or trial of the case, as most of his work was done outside of the court room. The trial court in his opinion granting a new trial stated:
“At the opening of the trial Mr. Grubb, an attorney*358 residing at Janesville, appeared in court and sat at the table with Mr. Earll, who was district attorney pro tempore appointed by the court to prosecute the case, and remained at the table during the impaneling of the jury. Before any further proceedings were had, counsel for defendant stated to the court in substance that they would object to Mr. Grubb appearing in the case or participating in the trial, as he was in the employ of private persons interested in prosecuting the defendant. No record was made of this, but the court stated that it would not be proper for Mr. Grubb to participate in the trial, and he thereupon withdrew and did not again appear in court during the trial. Upon the argument of the motion for a new trial it was made to appear by affidavits that Mr. Grubb remained in Prairie du Chien, where the trial was held, during the entire time the trial was in progress [which lasted nearly two weeks], made use of Mr. Earll’s office, and that he so remained in Prairie du Chien for the purpose of aiding and assisting Mr. Earll in securing evidence to be presented, examining witnesses prior to their testifying in court, etc. Mr. Earll in reply stated that Mr. Grubb was given the right to use his office; that he used it largely for conferences with his own clients, but that he did question some of the witnesses for the state prior to their testifying in court and advised Mr. Earll as to what their testimony would be.”
It is further alleged in affidavits upon information and belief that a fund of about $3,000 was raised by private parties for the purpose of investigating and prosecuting the defendant, which allegations are not denied. So it must be taken as a fact that Mr. Grubb rendered some assistance and did to some extent partake in the trial and prosecution of the defendant both inside the court room and outside.
The conclusion reached is that material aid given to the district attorney in the preparation for trial or in the trial of a criminal case, by a private attorney who is paid for such aid by private parties, invalidates the conviction.
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 investigat
This conclusion does not prevent the district attorney from fully investigating every alleged offense against the public. It is his duty to interview^ all who he has reason to believe may know any fact material to any criminal prosecution whether the person interviewed be an attorney retained by those interested in the prosecution or any other witnesses. This conclusion does not absolve any citizen from the duty of informing the district attorney of the facts known to him with reference to any violation of the law, whether such citizen is a layman or a member of the bar representing those interested in the prosecution.
In his investigation of any alleged offense the district attorney must of necessity consult those who know the facts,— the parties who may have been wronged and their attorneys, if they have employed them. In all such cases the district attorney acts in a quasi-judicial capacity and determines what course should be pursued iñ view of the facts disclosed by his investigation. It is only when the prosecuting officer shares his quasi-judicial functions and permits the attorney employed and paid by private parties to participate in determining what shall be done with reference to the commencement of a criminal prosecution, or with reference to the manner in which the prosecution shall be conducted, that the case comes within the condemnation of the rule which is here applied.
On behalf of the defendant it is urged that the order granting a new trial in this case should be affirmed on the ground that the defendant was prosecuted under an allegation in the information alleging that he had embezzled funds belonging to the village of Soldiers Grove and that he was found guilty of embezzling funds belonging to the school
In view of the circumstances of this case and the method in which the business was transacted, the defendant should be credited with such sums as were actually devoted to the use of the school district, whether paid direct to the school district treasurer, or paid to the bank in discharge of other obligations of the school district. This, as we understand the facts in the case, would require a full accounting between the defendant and the school district. If the moneys belonging to the school district were actually devoted to its lawful uses and purposes, the defendant cannot be held liable as for a conversion merely because under the circumstances of this case he was unable to produce a receipt from the school district treasurer or show payment directly to the treasurer of the school district. A conviction under the information could not be sustained by proof that after the moneys had reached the school district treasury they were misappropriated.
Leave to amend the information, if deemed necessary upon a new trial, is granted.
By the Court. — Order affirmed.