33 N.W.2d 266 | Wis. | 1948
The information charged the defendant with first-degree murder. He entered pleas of not guilty by reason of insanity, not guilty by reason of being insane or feeble-minded at the time of the commission of the alleged offense, and not guilty. The case was tried to a jury, and from a judgment of conviction upon the jury's verdict of guilty, the defendant brings this appeal.
The state introduced evidence establishing that at about 2 o'clock a.m. on July 26, 1946, in the city of Madison, the defendant shot and killed one Bertha Parker; that shortly thereafter the defendant surrendered himself to the officer in charge of the Dane county jail, handed the officer his gun, and stated that he had just shot Bertha Parker. *144
The defense offered no evidence to contradict the facts established by the state's witnesses, but only testimony, by lay and professional witnesses, touching on the question of the defendant's sanity. It introduced two witnesses, one of whom testified that she had visited the defendant in the jail in an attempt to persuade him to testify because defense counsel had told her that he could do nothing with the defendant. The other witness testified, in brief:
"I told him [Raines] . . . he should co-operate with his, lawyer . . . . He said he was so sure that the Holy Spirit told him last night he shouldn't say anything."
In his argument to the jury the district attorney said in substance:
"I'll tell you why the defendant did not testify, because he is so guilty, so guilty of first-degree murder, that he is afraid to get in the witness chair and face the music of cross-examination." Three questions are raised upon this appeal.
First. Does the time for serving a bill of exceptions in a criminal case commence to run when sentence is imposed and commitment executed, or is a written notice of entry of judgment required to start the time running?
It appears that this question has always been treated as purely one of statutory procedure — that actual knowledge of the entry of judgment is immaterial — and unless the notice of entry of judgment is served, the time for settling the bill of exceptions does not start to run. *145
"If a notice of appeal be construed as a sufficient `written notice of the entry' of judgment, then the service of any writing which refers to the judgment, as does the notice of appeal, would be sufficient to set the time for settling a bill of exceptions running. Such a writing would not meet the requirements of the statute. The statute requires a definite form of notice. The sixty-day period within which to settle a bill of exceptions does not begin to run until a notice which is in the form prescribed by statute has been served." Eskelinen v.Northwestern C. S. Co. (1930)
In State v. Mueller (1936),
"Service of such a notice is necessary in order to fix the time for commencement of that period of ninety days. As no such notice was ever served in the case at bar, no time was ever fixed for the commencement of that period of ninety days; and, as it had not even commenced to run, it could not have expired when the proposed bill of exceptions was served on July 19, 1935."
This likewise disposes of the state's second point that the trial court erred in extending the time to settle the bill of exceptions. The defendant had a right to settle the bill independent of the orders of the trial court enlarging the time since no notice of the entry of judgment had here been served.
The chief question raised on this appeal is whether the remarks of the district attorney constitute prejudicial error requiring a new trial.
While we do not approve of district attorneys making improper remarks on argument, we must recognize that there was a certain air about the testimony of defense witnesses which might invite comment.
The constitution grants to the accused the right to refuse to be a witness. If a defendant wishes to exercise this right, *146 he ought to do so openly and without camouflage or subterfuge.
At the close of the district attorney's argument the trial court denied a defense motion for a mistrial because of the offensive comment of counsel; specifically admonished the jury that it was to disregard the remark because it was improper; advised that the defendant has the right not to testify for any reason that he sees fit and no presumption is raised against him because he does not testify; and that the jury was to draw no inference of guilt from the fact that he had not testified.
Again in its formal instructions the trial court covered the subject explicitly. We are of the opinion that the defendant's right to a fair trial was not impaired by the incident, and that whatever error was originally committed was corrected by the trial court's rebuke and instructions.
By the Court. — Judgment affirmed.
MARTIN, J., took no part.
