Stoddard v. State

132 Wis. 520 | Wis. | 1907

SibbecKBR, J.

The evidentiary facts were sucb tbat tbe jury were justified in inferring tbat plaintiff in error took the horse and buggy at ,the time alleged without permission or authority from the owner, and drove the horse from Rich-land Center into the country to the place in the public highway where the buggy and harness were found some time shortly after 11 o’clock that night.

It is urged that the evidence of the sheriff and another witness, to the effect that the plaintiff in error made statements at the time of ,his arrest and after confinement in the county jail admitting that he took this rig into his possession and drove it away, should not have been admitted. Plaintiff in error denies having made any such statements. The circumstances testified to as having existed at the time they were made disclose nothing in the nature of any promise that it would be for his benefit or advantage to make them, nor does it appear but that, if made at all, they were made voluntarily by him. We discover nothing in the nature of the statements claimed to have been so made, or in the circumstances under which they are alleged to have been made, that affects their competency as evidence in the case.

It is contended that the evidence in its aspect most favorable to show guilt is not sufficient to establish that, if the accused in fact took the horse and buggy as charged, he did so with the intent of permanently depriving the owner of his property, and that the evidence at most sustains no finding other than that such taking constituted a mere trespass. This is urged upon the theory that the evidence is conclusive on the point that, if he took this property from the owner without his consent, it was for the purpose of driving the rig for some miles out of the city, and then of abandoning it with no intention of depriving .the owner of it permanently. In submitting the case the trial court instructed the jury that the intent of the accused at the time of the taking of the property was an important fact, and that before they could convict Mm of tbe offense charged they “must be convinced by tbe evidence, beyond a reasonable donbt, that at tbe time be took it be took it intending wholly to deprive tbe owner of this property and without an intention to return it” This stated tbe rule governing tbe case as favorably under tbe evidentiary facts as plaintiff in error could demand, and leaves no room for doubt that tbe jury found as a fact that tbe accused did take tbe property with tbe felonious intent, at tbe time be took it, of depriving tbe owner of it permanently. An examination of tbe evidence persuades us that tbe jury were warranted in concluding, from all tbe eviden-tiary facts and circumstances, that at tbe time tbe accused wrongfully took this property be did so with the felonious intent of stealing it. Hill v. State, 57 Wis. 377, 15 N. W. 445.

It is contended that tbe court erred in receiving tbe verdict in tbe absence of tbe plaintiff in error. Tbe record discloses that tbe jury retired to deliberate on their verdict at 9 o’clock in tbe forenoon, and at about 4:30 o’clock in tbe afternoon they announced to tbe judge that they bad agreed upon a verdict. Thereupon tbe court ordered tbe courthouse bell to be rung to notify counsel and plaintiff in error thereof, and directed deputies to find and notify them of tbe jury’s agreement on a verdict and to .appear in court. After waiting about thirty minutes tbe court was informed by tbe officers that plaintiff in error could not be found, and, so far as they bad ascertained, be bad gone out of tbe city to bis father’s bouse, some two miles distant from tbe courthouse. He was at liberty on bail. Tbe court then received tbe verdict in bis absence. His attorney was present and objected to tbe reception of tbe verdict. After it was announced by tbe jury, upon bis request tbe jury was polled. Tbe right of tbe accused to be present at all stages of bis trial in felony cases is well recognized, and, as a consequence, be could not be deprived of this right. In this case tbe facts show that plaintiff in error voluntarily absented himself from the court room and its immediate vicinity in sncb manner tbat he did not hear the usual call by bell announcing that the jury had agreed upon a verdict. The court’s officers, after a reasonable search, were not able to find him to inform him that, the jury were prepared to report the verdict they had agreed upon. In effect this conduct is a waiver of his right to be present, if he can in law so waive it'. The decisions are not uniform upon the question of his power to so waive it. In Hill v. State, 17 Wis. 675, the accused was tried for the larceny of several United States treasury notes. He had been present during the trial, and was in the court room when the jury appeared and announced that they had agreed upon a verdict. ’ The court directed them to retire and put their verdict in writing. They did so, and soon thereafter, when they returned into court to deliver a written verdict, the accused had absented himself from .the court room. His attorney, however, was present and had the jury polled. On appeal to this court he averred that the reception of the verdict in his absence was prejudicial error. It is there stated:

“It is undoubtedly true that every person tried for a felony has the right to be present at the trial, and the whole of it; and if he should be deprived of this right without his consent it would be erroneous.”

The court held that the right is one which a defendant may voluntarily waive, to the extent at least of absenting himself during a portion of the trial. We find this holding is supported in other jurisdictions and discover no grounds why it should not be adhered to. The remarks of the court upon this question in the case of Sahlinger v. People, 102 Ill. 241, 247, under similar circumstances, are applicable to the facts before us:

■ “The defendant was not imprisoned, nor was he prevented by any improper means from being present when the verdict was rendered. He voluntarily and wrongfully absented himself, and he cannot now claim any advantage on account of such absence.”

Other cases sustaining this ruling are the following: Fight v. State, 7 Ohio, 180; Price v. State, 36 Miss. 531; Barton v. State, 67 Ga. 653; State v. Wamire, 16 Ind. 357; State v. Kelly, 97 N. C. 404, 2 S. E. 185; State v. Guinness, 16 R. I. 401, 16 Atl. 910; 1 Bishop, New Crim. Proc. § 266 et seq.

An exception is urged to the remark of the district attorney upon argument to.the jury concerning the handcuffs the sheriff used when he arrested the plaintiff in error, that “they are not larger than a good many things that Mr. Stod-dard carries in his pockets.” This statement is presented without the other statements given in connection with it, and it does not appear whether it was in reply to criticisms of the •sheriff or in explanation of some other suggestion by counsel •or court. We are of opinion that this remark could in no way have had any prejudicial effects on the minds of the jury. It cannot be considered as constituting prejudicial ¡error in the case.

We discover'no reversible error in the record.

By the Gourt. — Judgment affirmed.