Bennett v. State

• Decision Date: 20 February 1883
• Citation: 14 N.W. 912,57 Wis. 69
• Parties: BENNETT v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

57 Wis. 69

14 N.W. 912

BENNETT

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Error to circuit court, La Crosse county.W. C. Silverthorn and M. A. Hurley, for plaintiff in error, James C. Bennett.

L. F. Frisby, Atty. Gen., for defendant in error, the State of Wisconsin.

TAYLOR, J.

The plaintiff in error was convicted of murder in the first degree upon an information filed against him in the circuit court of Marathon county. Upon the application of the plaintiff in error the place of trial was changed to La Crosse county. The change was made on the ground of the alleged prejudice of the judge of the circuit court of Marathon county. On his arraignment, upon the information, the plaintiff in error, through his counsel, interposed a plea of not guilty, together with a special plea of insanity, setting forth in substance that at the time of the commission of the offense charged in the information the plaintiff in error was insane. To this special plea the state put in a reply denying the insanity. Upon the issue so made in the case a jury was duly impaneled and sworn to try the same. The issue upon the plea of insanity was tried first, and upon that plea the jury found a verdict against the plaintiff in error, and that he was sane. After the rendition of such verdict the case was tried upon the plea of not guilty, by the same jury, and a verdict rendered that the plaintiff in error was guilty of murder in the first degree. The plaintiff thereupon moved the court to set aside such verdict and for a new trial for reasons hereinafter stated. The motion was denied, and the plaintiff in error was sentenced to imprisonment for life. Afterwards a bill of exceptions was settled containing all the evidence and exceptions taken at the trial upon both issues, and the record was brought to this court by a writ of error.

Upon the motion to set aside the verdict and for a new trial, the plaintiff in error set out in writing the following as the grounds of such motion: “(1) That the court erred in its rulings and decisions during the trial in admitting evidence against the defendant's objections. (2) That the court erred in charging and directing the jury as well upon the special plea of the defendant as upon the issue of not guilty. (3) That the court erred in refusing to charge and direct the jury both upon the special and general issue as requested in writing by the defendant. (4) That the verdict of the jury upon the special plea, whereby the jury find the defendant sane at the time of the killing, is unsupported by the evidence, and contrary to the law and the evidence. (5) That the court erred in refusing to charge the jury as requested by the defendant's counsel in writing, permitting the jury, under all the evidence in the case, to find a verdict of murder in the second degree. (6) That the verdict of the jury, whereby they find the defendant guilty of murder in the first degree, is unsupported by the evidence, and contrary to the law and evidence.”

In this court the plaintiff in error assigns as a reason for the reversal of the judgment herein, a matter which was not spoken of in the court below, so far as the record discloses, viz.: that the statute of this state which requires the defendant in a criminal action, who claims that he was insane at the time of the commission of the alleged offense, to plead that matter separately and as a special plea with the plea of not guilty, and that the issue on the plea of insanity shall be first tried by the jury impaneled in the action; that the verdict of the jury upon that plea shall be taken before the case is tried upon the plea of not guilty; and which further provides that if the verdict of the jury on such plea is that the defendant was not insane at the time of the commission of the offense, then his trial upon the plea of not guilty shall at once proceed before the same jury, and the finding of the jury upon such special plea shall be final and conclusive upon the question of his insanity at the time of the commission of the offense,--is unconstitutional and void. The sections of the law governing the proceedings in such cases are 4697, 4698, and 4699. Although we have serious doubts as to the right of the plaintiff in error to raise that question for the first time in this court, after having acquiesced without objection to a trial in strict conformity to the provisions of the law referred to, yet as a new trial must be ordered in the case for the reasons hereinafter stated, and as the question has been argued by the counsel for the respective parties, we have concluded to treat the question as in the case, to determine the same, and indicate the practice under the law. It is said the sections of the statute above cited are unconstitutional, because they deprive the accused of the right of trial by jury, secured to him by sections 5 and 7 of article 1 of the constitution of this state.

It is evident that section 5, referred to, was intended to secure the right of trial by jury in civil and not in criminal actions. The words in the section, “and shall extend to all cases at law, without regard to the amount in controversy,” clearly limit the provisions of that section to civil actions at law, and exclude the idea that it was intended to apply to criminal actions. The provision in said section that “a jury trial may be waived by the parties, in all cases, in the manner prescribed by law,” confirms this construction of the section. In the constitution, the state and the defendant in criminal prosecutions are not spoken of as parties to an action. Under this section, this court has repeatedly held that a party to an action may waive the right of trial by jury, not only in the manner prescribed by law, but by not taking exceptions on the trial of an action without a jury, the right to which is secured to him by this section. Millett v. Hayford, 1 Wis. 401;Noval v. Rice, 2 Wis. 22;Leonard v. Rogan, 20 Wis. 540;May v. Railroad Co. 3 Wis. 218;Pratt v. Donovan, 10 Wis. 378.

If the defendant's right of trial by a jury is secured by section 5 only, then it would seem he might waive the right, and if he proceeded to trial without objection before a jury, not being a common-law jury, or not proceeding according to the common law, he would waive his right to a constitutional jury. Section 7 of article 1 of the constitution declares that in all criminal prosecutions the accused shall, among other things, “have the right to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law.”

It may be assumed that this section secures to the accused in all criminal prosecutions a right of trial by jury, and that the jury mentioned in said section means a jury of 12 impartial men,--such a jury as was known to the common law and to the courts of the territory of Wisconsin before the state was organized. See Millet v. Hayford, 1 Wis. 401;Norval v. Rice, 2 Wis. 22;Gaston v. Babcock, 6 Wis. 503;Stilwell v. Kellogg, 14 Wis. 461.

In the case at bar there is no complaint on the part of the accused that the jury which tried the action was not a jury of 12 impartial men of the county or district where the offense was committed, although the record shows very clearly that the crime was committed in the county of Marathon and the trial was had in the county of La Crosse; but the place of trial was changed to La Crosse upon the application of the accused, and he must be held, therefore, to have waived his right under the constitution to a trial by an impartial jury of the county where the offense was committed. His power to waive that constitutional right has never been questioned, and is constantly acted upon by all the trial courts in the state. If that right cannot be waived, then all the laws for the change of the place of trial on the application of the accused, as well as on the part of the state, are void. The supreme court of Tennessee expressly held that under a constitutional provision in all respects like ours, the defendant could waive the right to be tried by a jury of the county or district in which the offense was committed. Dula v. State, 8 Yerger, 511. This court has held that the place of trial must be the county where the crime was committed, unless the change was made on the application of the defendant. Wheeler v. State, 24 Wis. 52. But it has never been held that the place of trial might not be changed on the application of the defendant. The power of the accused to waive this right has been constantly recognized in this court. It has also been held that the accused may waive the right to meet the witnesses face to face on the trial. U. S. v. Sacramento, 2 Mont. 239;Miller v. State, 25 Wis. 384. It will be seen, by an examination of the cases cited in 1 Bishop, Crim. Proced. §§ 117, 123, that the accused may waive many things upon the trial which are secured to him as a right either by the law or the constitution.

But it is unnecessary to determine whether the accused waived any of his rights by not objecting to the manner of conducting the trial in the court below, as we are of the opinion that the sections of the statute above referred to are not in confiict with the provisions of section 7 of article 1 of the constitution, above quoted. He was tried by a jury of 12 impartial men, drawn, impaneled, and sworn in the manner prescribed by the law, and that jury decided all questions of fact which were put in issue by the defendant's pleas; and the only contention made by the learned counsel for the plaintiff in error upon this point is that the trial by jury, secured to the defendant by the constitution, secures to him a trial upon such pleadings as were in use at the time the constitution was adopted. At common law, and according to the practice in the territory before the adoption of the constitution in...