146 Wis. 508 | Wis. | 1911
This cause is one of highest importance, as .all capital cases are. Nevertheless, unlike most of such cases, the questions presented for decision are very few and quite simple. They are not such as call for any extended discussion or for giving in detail a history of the homicide in order to show precisely how such questions arose. A mere statement of such questions will sufficiently suggest the particular phases of the controversy to which they apply. That course seems advisable, thus rendering a brief opinion adequate for the case.
Is it proper under the Code of Procedure to charge a person in one count in an information of having been the principal in the commission of a homicidal offense, and in a second of having been an accessory, joining others, supposed to have been participants in committing such offense, require such person to plead- to both counts, try him upon the issue raised by a plea of not guilty as to each charge, and submit the ■cause to the jury on both issues ?
Counsel for plaintiff in error seems to mainly rely on maintaining the negative of the stated proposition. It is not new. It is ruled in the affirmative by Miller v. State, 25 Wis. 384, 386, which seems to have been overlooked by counsel on both sides. We cannot do better than, with slight changes, quote from the opinion in that case treating the precise point before us:
“It was allowable to insert several counts in the indictment, solely for the purpose of meeting the evidence as it might transpire on the trial. Put the charges all related essentially to the same transaction, to the same killing; and whether it should appear that the defendant gave the mortal blow or voluntarily aided and abetted ... in giving it was not material, since, if” the accused “was found guilty upon either*511 ■count, it would be sufficient to support the indictment. But it was .proper to insert these different counts to meet every possible state of the evidence adduced; and the defendant could not have been prejudiced by the refusal of the court to ■compel the prosecuting officer to elect on which count he would proceed. It is very clear that the offense with which the defendant was charged was the murder of” Dominic Gapinsld, “and none other. And there is as little ground for saying that the court erred in receiving evidence against the defendant generally, upon” both “counts in the indictment. Eor, as already observed,” both “counts charged only one crime; and Avhether the evidence showed the defendant was the principal perpetrator, or voluntarily aided ... in giving the mortal blow, is immaterial, since in either case it would, in law, be the murder of each.”
Thus this court in response to the letter of the Code, sec. 2829, Stats. (1898), and in harmony with the dominating ■spirit of the reformed procedure, turned from the technical rules which formerly interfered with the administration of justice and which still prejudicially influence or dominate some jurisdictions as sufficiently appears by authorities upon which counsel for plaintiff in error relies. It is refreshing to thus turn to decisions made here more than forty years ago and observe the high appreciation the court then had of the system which justifies as well as demands domination of the practical and substantial regardless of the technical .and inconsequential. It was in pretty close connection with the decision quoted from that the court most significantly dignified the statute and the liberal spirit of the Code, by characterizing the particular provision as “a beneficent statute.” Decker v. Trilling, 24 Wis. 610.
Where two persons are jointly informed against as having committed the offense of murder in the first degree and also as having been accessories to the same offense in such degree, and one is permitted to plead guilty of having committed the offense in the third degree, may the other properly be tried as an accessory as to the crime in a higher degree ?
It is not perceived how the plea of guilty, in such cireum-
A person being charged, in combination, with others of having committed a homicidal offense and evidence having been produced on his trial, tending to prove that the offense was-committed pursuant to such combination, is evidence competent, incriminating such person, of a confession by a co-conspirator while restrained of his liberty, made in response to-questions put to him by an officer having him in charge and not in the presence of any one to protect him from being unduly influenced ?
The proposition stated, in general, fits a phase of the trial in question so far as the undisputed evidence goes. All other-evidence of undue influence going to show that the incriminating disclosures were not freely and voluntarily made was-controverted, so what the real facts were was a jury question.
No question seems to be raised as to tbe time of tbe confession, in that it was after consummation of tbe conspiracy. Of course, where two or more persons concert together to commit an offense and commit it pursuant thereto, a confession by one after tbe fact, not in presence of and assented to', actually or impliedly, by tbe other, is not admissible against him if properly objected to. Miller v. State, 139 Wis. 57, 88, 119 N. W. 850. However, there are circumstances in this case rendering admission of tbe evidence of tbe incriminating confession nonprejudicial under that rule, especially since no assignment of error is made which reaches tbe subject or is discussed in the brief of counsel.
Tbe further claim is made that tbe verdict is contrary to tbe evidence. On this it seems tbe jury might reasonably have come to tbe conclusion complained of, which is sufficient for tbe point in favor of tbe state, even if it were thought that they might reasonably have come to a different conclusion.
By the Gowrt. — Tbe judgment is affirmed.