Baker v. State

• Decision Date: 25 May 1894
• Citation: 88 Wis. 140,59 N.W. 570
• Parties: BAKER v. STATE.
• Court: Wisconsin Supreme Court

88 Wis. 140

59 N.W. 570

BAKER

v.STATE.

Supreme Court of Wisconsin.

May 25, 1894.

Error to circuit court, Ashland county; J. K. Parish, Judge.

E. W. Baker was convicted of theft, and brings error. Affirmed.

It appears from the record that on or about September 20, 1889, the Iron Exchange Bank of Hurley held, as a special deposit, about $40,000, which was on that day stolen therefrom; that upon complaint made to the judge of the municipal court of Ashland, November 26, 1889, to the effect that the plaintiff in error, E. W. Baker, had committed said offense, a warrant was issued thereon, and said Baker was arrested. That, upon an examination had before said judge, he was, on December 4, 1889, held for trial in said municipal court. That February 10, 1890, an information was filed against the said E. W. Baker and one Phelps Perrin, the second count of which was in the words and figures following, to wit: “Second count: And I, George P. Rossman, district attorney as aforesaid, do hereby further inform the court that on the 20th day of September, A. D. 1889, at the town of Vaughn, in said Ashland county, Phelps Perrin and E. W. Baker did feloniously steal, take, and carry away thirty-nine thousand one hundred and sixty dollars ($39,160), lawful money of the value of thirty-nine thousand one hundred and sixty dollars ($39,160), the money of the Ashland Iron Mining Company, a corporation organized and existing under and by virtue of the laws of Michigan, then and there being found, against the peace and dignity of the state of Wisconsin. Dated Feb. 10, A. D. 1890. George P. Rossman, District Attorney.” That said Baker thereupon put in a plea in abatement, which was overruled by the said municipal court, and thereupon the said Baker pleaded not guilty, and thereupon and in February, 1890, the said Baker filed an application for a change of the venue upon an affidavit of prejudice of the judge, and thereupon an order was entered changing the place of trial of said action to the circuit court of Ashland county. That, subsequently, the said Baker was separately tried in the circuit court for Ashland county, and at the close of such trial, June 25, 1890, the jury returned a verdict to the effect that the said Baker was guilty of the offense as charged in the said second count of the information made and filed therein; that, judgment being entered thereon and the said Baker sent to the state's prison, the case was brought to this court on writ of error, and November 17, 1891, the same was reversed and the cause remanded for a new trial. 80 Wis. 416, 50 N. W. 518. That, pursuant to the mandate of this court, and on or about February 1, 1892, the said circuit court ordered said Baker from the state's prison to Ashland county for trial at the February term of said court for 1892. That thereupon the said Baker put in a new plea in abatement on seven different grounds mentioned, the sixth of which was to the effect that, at the time of his arrest, he was a resident of Ironwood, Mich., and was brought to Wisconsin without extradition papers and without due process of law, but forcibly, and under duress. That thereupon the state demurred to all of said plea except the sixth, and traversed that. That the court thereupon sustained such demurrer, and, the defendant having failed to prove that he was thus brought forcibly from Michigan, that portion of the plea was overruled. That the said Baker thereupon filed a petition to remove said cause to the circuit court of the United States for the western district of Wisconsin, and the state thereupon answered said petition for removal, and the court denied such application. That said Baker thereupon asked to amend his original plea in abatement, but the same was denied by the court. That March 3, 1892, the said second count of said information was amended by the district attorney so as to read, after the entitling of the same, as follows, to wit: “I, Richard Sleight, district attorney of Ashland county, hereby inform the court that on the 20th day of September, A. D. 1889, at the town of Vaughn in said county, Phelps Hill, alias Phelps Perrin, and Edward W. Baker did forty thousand six hundred and eighty dollars ($40,680), lawful money of the United States, of the value of forty thousand six hundred and eighty dollars ($40,680), twenty-six thousand seven hundred dollars ($26,700) of which said money was the money and property of the Ashland Iron Mining Company, a corporation organized and existing under and by virtue of the laws of Michigan, and thirteen thousand nine hundred and eighty dollars ($13,980) of which said money was the money and property of the Germania Iron Mining Company, a corporation organized and existing under and by virtue of the laws of Wisconsin, all of which said money was then and there found, feloniously steal, take, and carry away, against the peace and dignity of the state of Wisconsin. Richard Sleight, District Attorney. Dated March 3, A. D. 1892.” That thereupon the trial of said cause upon the merits proceeded, and at the close thereof, March 10, 1892, the jury returned a verdict which, omitting the title of the cause, is as follows, to wit: “We, the jury impaneled and sworn to try the issues in the above-entitled action, do find the above-named defendant, Edward W. Baker, jointly impleaded against with Phelps Hill, alias Phelps Perrin, guilty of the offense as charged in the amended information herein. Dated March 10, A. D. 1892. Thomas Wentworth, Foreman.” That March 11, 1892, the defendant moved the court to set aside said verdict, and grant a new trial, but the same was denied. That thereupon the court entered judgment against said Baker in the words and figures (omitting the title) following, to wit: “Sentence by the court: It is hereby adjudged that you, Edward W. Baker, be sentenced to be confined at hard labor in the state prison at Wapun by the warden thereof for the period of five years, the first day of your imprisonment therein and the 20th day of September of each year thereafter during your term of sentence to be solitary confinement. The term of your sentence shall begin at noon to-day. Let the sheriff of Ashland county put this sentence into execution. By the Court. J. K. Parish, Circuit Judge. Dated this 11th day of March, A. D. 1892.” From that judgment the said Baker brings this writ of error.Rublee A. Cole, for plaintiff in error.

J. L. O'Connor, Atty. Gen., for the State, as to qualification of jurors, cited State v. Collins, 70 N. C. 241;Epes v. Com., 5 Grat. 676;Little v. Com., 25 Grat. 921;Com. v. Webster, 5 Cush. 295; Sanchez v. People, 4 Parker, Cr. R. 535; Monroe v. State, 23 Tex. 210;People v. King, 27 Cal. 507;State v. Lawrence, 38 Iowa, 51;State v. Potter, 18 Conn. 166.

CASSODAY, J. (after stating the facts).

As indicated in the foregoing statement, Baker and Perrin were together charged with the larceny. They pleaded separately, and each secured a separate trial, but were both convicted nearly four years ago. Such judgment against Perrin was affirmed by this court, November 17, 1891. Perrin v. State, 81 Wis. 135, 50 N. W. 516. On the same day, the judgment against Baker was reversed, for the reasons given in the opinion by Mr. Justice Winslow in the case. Baker v. State, 80 Wis. 416, 50 N. W. 518. Baker was again tried and convicted a little over two years ago, and the judgment entered therein is now here for review on this writ of error.

1. It is alleged in the plea in abatement, put in just before the last trial, in effect, that the trial court was without jurisdiction because Baker was brought into Ashland county from Michigan forcibly and without extradition papers. Assuming such to be the facts, still that would not have deprived the trial court of jurisdiction. Ker v. People, 110 Ill. 627; affirmed, 119 U. S. 436, 7 Sup. Ct. 225;Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. 1204. In each of these cases the prisoner was kidnaped and then brought within the jurisdiction of the trial court. To the same effect: Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687;State v. Stewart, 60 Wis. 587, 19 N. W. 429. But in the case at bar such portion of the plea in abatement was denied and put in issue by the state; and, since Baker failed to offer any evidence that he was so forcibly brought into Ashland county and the state, it must be assumed that he voluntarily came within the jurisdiction of the trial court. So, upon the record before us, the question presented is really not in the case.

2. To the balance of the plea in abatement the state demurred, and the trial court appears to have properly sustained the demurrer. But the contention is that the allowance by the court of such plea in abatement, to be filed just before the last trial, operated as a withdrawal of the plea of not guilty entered prior to the first trial. In support of such contention, counsel cite the statute requiring a plea in abatement to be filed “before pleading to the merits” (section 4654, Sanb. & B. Ann. St.), and also cites Martin v. State, 79 Wis. 165, 48 N. W. 119;Baker v. State, 80 Wis. 416, 50 N. W. 518;Ryan v. State, 83 Wis. 486, 53 N. W. 836. But none of these cases support any such contention. The original plea in abatement, filed before pleading to the merits, was held bad on its face when the case was here before. However irregular it may have been for the trial court to allow Baker to file a new plea in abatement after having pleaded to the merits, and just before the last trial, yet it was granted at his request and as a favor to him, and he is in no position to take advantage of such irregularity. While a right to plead in abatement may be waived by pleading to the merits, yet it does not follow that a plea to the merits is to be deemed waived or withdrawn by subsequently filing a plea in abatement. Dilatory pleas are not favored in the law, whereas pleas in bar and to the merits are favored. Hooker v. Green, 50 Wis. 276,...