Havenor v. State

CourtUnited States State Supreme Court of Wisconsin
Citation104 N.W. 116,125 Wis. 444
PartiesHAVENOR v. STATE.
Decision Date23 June 1905

OPINION TEXT STARTS HERE

Error to Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Charles S. Havenor was convicted of bribery, and brings error. Reversed.

The plaintiff in error stands charged with the offense of bribery, as defined in the statutes of this state. He was arrested, brought before the court, and prosecuted to conviction and judgment in the circuit court for Milwaukee county. To this judgment he prosecutes the writ of error from this court. Plaintiff in error was duly elected and was serving as alderman of the city of Milwaukee in the month of June, 1898, the time of the commission of the alleged offense. The facts material to and involved in the consideration of the errors assigned and argued will be stated in the opinion.J. L. O'Connor, W. J. Turner, Turner, Pease & Turner, and O'Connor, Schmitz & Wild, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and F. E. McGovern, Dist. Atty. (Walter D. Corrigan and Guy D. Goff, of counsel), for the state.

SIEBECKER, J. (after stating the facts).

After the jury had retired for deliberation as to their verdict in the case, they sent a communication to the presiding judge, through the bailiff having them in charge, requesting him to come before them for the purpose of answering some inquiries concerning the case. The judge responded by stepping into the doorway of the room where they were deliberating, whereupon a juror propounded some questions to him as to the right of immunity of persons who had appeared and testified before a grand jury in transactions involving the offense of bribery. In reply the court informed them that he could not answer the questions, but that the instructions given them fully covered the subject of their inquiry, and that some of the matters inquired about were excluded from their consideration by these instructions. The court also offered to read part of the instructions, or to submit to them the charge given. The record is not clear as to whether or not the written charge, as given, was thereafter submitted to the jury. According to the statements of some jurors, they received it with some paragraphs stricken out by the court, but still legible, and they were read by them. According to the statement of the judge, instead of these paragraphs being obliterated, they were covered by paper pasted over them. This proceeding occurred in the absence of the plaintiff in error, his counsel, and the court officers, and is alleged to constitute reversible error. The result of the adjudications on this subject is to the effect that all proceedings in a case should be open and public, and in the presence of the parties, whenever practicable, so as to afford them all reasonable opportunity to participate in the proceedings, and, if they are dissatisfied, to take such exception as the law allows. The due observance of this rule has led to a disapproval by the courts of any act by the judge, counsel, party, or stranger, whereby communication is had with the jury after the case is submitted to them, and they have retired for deliberation on their verdict, except it be in open court, and with a due regard to the rights and privileges of the parties. Whenever such communications were had, though they were not prompted by improper motives, and though they may not have influenced the jury in arriving at their verdict, still they are generally treated as in themselves sufficient ground for setting aside the verdict rendered, for the reason that no party should be subjected to the burden of an inquiry before the court, regardless of whether or not its conduct in this respect, or that of its officers or that of the opposing party, has tended to his injury. The case of Sargent v. Roberts et al., 1 Pick, 337, 11 Am. Dec. 185, where a similar question arose, has been much quoted, and referred to as a leading authority on this subject. The court, speaking through Parker, C. J., says: “As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at all is proper; and, if it was not, the party against whom the verdict was, is entitled to a new trial.” “No communication whatever ought to take place between the judge and the jury, after the cause has been submitted to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel of the cause.” “It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it. The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control over the case, except in open court, in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the inconvenience of jurors is of small consideration, compared with this great object.” These rights are clearly of an important nature, and affect the substance of a jury trial, and the right of a party to be heard and to bring in review every transaction of the court's proceeding. For the attainment of the best administration of justice, the law requiring that all proceedings of courts be open and public, and in the presence of the parties or their representatives, must be strictly enforced; and, in case of any infringement of this policy, parties are not to be put to the burden of showing that it in fact injured them, even though it be manifest that no improper motives prompted the acts complained of. We are constrained to hold that the communications had between the jury and the judge in the case after the jury had retired to deliberate upon the verdict were prejudicial, and constitute reversiible error. Watertown Bank & Loan Co. v. Mix et al., 51 N. Y. 558;Read v. City of Cambridge, 124 Mass. 567, 26 Am. Rep. 690;Crabtree v. Hagenbaugh, 23 Ill. 349, 76 Am. Dec. 694; C. & A. R. Co. v. Robbins, 159 Ill. 598, 43 N. E. 332;State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200;McBean v. State, 83 Wis. 206, 53 N. W. 497;Smith v. State, 51 Wis. 615, 8 N. W. 410, 37 Am. Rep. 845;Barnard v. State, 88 Wis. 656, 60 N. W. 1058.

Error is assigned upon the rulings of the court refusing to compel the district attorney to produce the record of the clerk of the grand jury, containing minutes of the testimony of the plaintiff in error given before the grand jury, and in excluding the testimony of grand jurors to prove what he testified to before them pertaining to the transaction for which he is on trial. Plaintiff in error claims the benefit and immunity from prosecution and punishment of section 4078, Rev. St. 1898, as amended by chapter 85, p. 106, Laws 1901, upon the ground that he is now being prosecuted for and on account of a transaction concerning which he theretofore gave testimony before a grand jury of ...

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  • State v. Hayes
    • United States
    • Connecticut Supreme Court
    • March 4, 1941
    ... ... Southmayd, ... Fed.Cas.No. 16,361, 6 Biss. 321, 324; Eighmy v ... People, 79 N.Y. 546, 560; People Diamond, 72 A.D. 281, ... 76 N.Y.S. 57, affirmed, 175 N.Y. 517, 67 N.E. 1087; State ... v. Rhoads, 81 Ohio St. 397, 410, 91 N.E. 186, 27 ... L.R.A.N.S., 558 and note; Havenor v. State, 125 Wis ... 444, 448, 104 N.W. 116,4 Ann.Cas. 1052; 2 Wharton, Criminal ... Evidence, 11th Ed., p. 1355 ... The ... defendants made the claim that this proceeding could not be ... instituted upon an information by the special state's ... attorney without a preliminary ... ...
  • United States v. Rose
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • July 10, 1953
    ...v. Byoir, 5 Cir., 1945, 147 F.2d 336; Edwards v. United States, 1941, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957, and we add Havenor v. State, 125 Wis. 444, 104 N.W. 116. ...
  • State v. Anderson, 2006 WI 77 (Wis. 6/29/2006)
    • United States
    • Wisconsin Supreme Court
    • June 29, 2006
    ...communications between the circuit court and the jury are not structural errors requiring reversal: We continue to believe, as we said in Havenor, that communication between judge and jury outside the open courtroom and outside the presence of the defendant and defense counsel constitutes e......
  • State v. Anderson
    • United States
    • Wisconsin Supreme Court
    • June 29, 2006
    ...communications between the circuit court and the jury are not structural errors requiring reversal: We continue to believe, as we said in Havenor, that communication between judge and jury outside the open courtroom and outside the presence of the defendant and defense counsel constitutes e......
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