198 Wis. 551 | Wis. | 1929
The defendant was charged in the information with having on the 3d day of April, 1927, in the county of Waupaca, violated the liquor laws, in unlawfully having in his possession privately manufactured distilled intoxicating liquor. In other counts in the information he was further charged with two prior convictions upon similar charges. Upon the trial the defendant was convicted by a jury of the violation above referred to, which occurred on the 3d day of April, 1927, and subsequent proof was introduced establishing his prior convictions upon the other counts in the information. The court thereupon imposed sentence, to the effect that the defendant be punished by confinement at hard labor in the state prison for an indeterminate term of from two to three years, the first ten days of said imprisonment to be in solitary confinement. After verdict the defendant moved for a new trial upon the ground of newly-discovered evidence, and defendant’s first assignment of error is based upon the refusal of the court to grant such new trial upon that ground.
Before considering the application for a new trial on the
The district attorney and the undersheriff then entered the Rickaby home, where they found one Adolph Johnson, who had been residing with Rickaby in the latter’s home, and a number of other persons, all of whom were apparently under the influence of liquor. The undersheriff testified that Johnson was so intoxicated that he could only walk with great difficulty.
The undersheriff thereupon, in search for further evidence, returned to the place in the' blackberry shrubbery through, which the defendant had passed, and there found a cap which was subsequently identified to be one belonging to and worn by the defendant Rickaby. The bottle of moonshine was also discovered at this point, and a flashlight was found which witnesses testified was similar to an instrument of that kind owned and,possessed by the defendant.
In addition there was testimony of one Looker, a disinterested witness, to the effect that on April 4, 1927, he found Rickaby’s face was badly scratched and that these scratches appeared to be of recent origin. The undershériff testified that in endeavoring to pass through the blackberry hedge he had also received numerous scratches, both upon his face and on his hands.
Rickaby’s defense consisted of an alibi, which was supported by the testimony of one John Behm and his wife, that at the time when this alleged discovery of illicit liquor was made he was at their home and made inquiry with respect to another farm which he intended to rent; that he arrived at their home between six and seven o’clock in the evening, and did not leave there until after nine o’clock of that day.
A careful reading of the record in this case convinces us that the denial of a new trial by the court was fully warranted. There was direct evidence in the case establishing the defendant’s identity, which evidence was strongly supported by circumstantial evidence. The affiants who swore that Carl Buehler was at the home of the Nowaks on the evening of the day in question at the hour of about 8 or 8:30, giving the affiants the benefit of good faith, could readily have been mistaken; and the correctness of their testimony is strongly involved in doubt when we consider the counter affidavits filed upon the subject. Ordinarily the testimony of one like Johnson, who now charges himself with the commission of the offense, is of strong probative force. However, it appears from the evidence that Johnson at the time the undersheriff entered the defendant’s home was there found in a grossly intoxicated condition, which reflects grave doubt as to his ability to escape with the speed and in the manner as was testified to by the undersheriff.
In view of the convincing evidence adduced at the trial, and the counter affidavits submitted by the State, the court was fully justified in arriving at the conclusion which he did when he denied the motion for a new trial.
A motion for a new trial on newly-discovered evidence is addressed largely to the sound discretion of the court. Walata v. State, 180 Wis. 646, 193 N. W. 61.
The defendant in his second assignment of error urges that the court erred in sentencing the defendant to solitary confinement. Such sentence was authorized under the provisions of sec. 4731 of the Statutes of 1898, but such section was repealed by ch. 359 of the Laws of 1925, and in place thereof a new section known as sec. 359.05 was enacted. Sec. 359.05 does not provide for solitary confinement. It is conceded by counsel for the State that the provision in the sentence for solitary confinement is unauthorized in this case.
Under the provisions of sec. 274.35, Stats., this court may modify the judgment of the court below by eliminating therefrom that portion contained therein having reference to solitary confinement.
By the Court. — -The judgment of the lower court is modified so as to eliminate therefrom the provision for solitary confinement, and as so modified is affirmed; and the cause is remanded with directions for further proceedings according to law.