Biemel v. State

• Citation: 37 N.W. 244,71 Wis. 444
• Parties: BIEMEL v. STATE.
• Decision Date: 27 March 1888
• Court: United States State Supreme Court of Wisconsin

71 Wis. 444

37 N.W. 244

BIEMEL

v.STATE.

Supreme Court of Wisconsin.

March 27, 1888.

Error from municipal court of Milwaukee.

Information for murder against Andrew Biemel. On the trial, defendant was found guilty of manslaughter in the third degree, and now brings error.Markham, Williams & Bright, for plaintiff in error.

C. E. Estabrook, Atty. Gen., for defendant in error.

TAYLOR, J.

The plaintiff in error was tried upon an information for the murder of one Pagel, in the municipal court of Milwaukee county. On the trial, the plaintiff in error was convicted of manslaughter in the third degree. The plaintiff in error, upon the return of the verdict, moved the court to set aside the verdict, and grant a new trial, upon the minutes of the court, for the following reasons: “(1) That the court erred in refusing to permit the defendant to show the employment of Mr. R. N. Austin, the attorney who appeared for the state, and his payment by private parties; and that the court erred in holding that counsel for the state receiving pay from private parties should be permitted to take part in the trial on behalf of the state. (2) That the verdict is contrary to the evidence and to the charge given by the court.” “(4) That the verdict is perverse, and contrary to the law and facts. (5) That justice has not been done the defendant.” The motion was overruled, and the defendant excepted; and after judgment was pronounced upon the verdict, he settled a bill of exceptions in the case, and brings the judgment and proceedings on the trial to this court upon a writ of error, for review.

As we have concluded that the learned judge of the municipal court erred in refusing to permit the defendant to show that Mr. Austin, who appeared and assisted the district attorney in prosecuting on behalf of the state, was employed and paid by private parties to aid in such prosecution, we shall not pass upon the other causes of error assigned by the learned counsel for the plaintiff in error, further than to say that when the accused admits the killing, and the only defense is justifiable homicide, the evidence would have to be very clearly in favor of the accused upon the question involved in order to justify this court in setting aside the verdict against the decision of the trial judge refusing a new trial upon that ground. The question involved in the first assignment of error has not heretofore been presented to this court, in the form presented in this case, and we are now called upon for the first time to determine whether, upon the trial of a person accused of a high crime involving his imprisonment in the state prison for life or for a term of years, private persons may employ counsel, whether from good or bad motives, and send them into our courts to prosecute persons accused of such crimes, and whether the courts may allow such paid attorneys to prosecute the accused against his consent. We think public policy, and the fair, just, and impartial administration of the criminal law of the state, make it the duty of the courts to exclude the paid attorneys of private persons from appearing as prosecutors. That public policy is against permitting them to prosecute, is, we think, clearly indicated by the several provisions of our laws upon the subject of criminal prosecutions. The statutes provide for the election in each county of a prosecuting attorney, and they make it his duty to appear and prosecute all persons informed against or indicted for crimes in the courts of his county, and when for any reason there is no public prosecutor in the county, the court in which the prosecution is pending, shall appoint some one to prosecute the accused. Section 752, Rev. St., says: “It shall be the duty of the district attorney to prosecute all criminal actions in the circuit courts of his county, etc., and all criminal actions, except common assault and battery, and actions for breaches of the peace by the use of abusive or threatening words, before any magistrate, when requested by the magistrate before whom the action is pending, and upon like request to attend all criminal examinations before any magistrate; and at the request of a grand jury to appear before them and examine witnesses, to give advice, to draw all bills of indictment and informations,and issue subpœnas and other processes for the attendance of witnesses.” Section 754 reads as follows: “No district attorney shall receive any fee or reward for or on behalf of any prosecutor, or other individual, for services in any prosecution, to which it shall be his official duty to attend; nor be concerned as attorney or counsel for either party, other than for the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced but not determined shall depend;” “nor shall any district attorney while in office be eligible to or hold any judicial office whatever.” Section 750 provides for the appointment of a person in the place of the district attorney when the office is vacant, or when the district attorney is absent from the court unable to attend to his duties, or when he shall have acted as attorney for or be near of kin to the accused, and “when the person shall be so appointed by the court he shall for the time being perform all the duties and have all the powers of the district attorney.” Section 4649 directs that all informations for crimes shall be signed by the district attorney and filed by him. In addition to these provisions, the legislature, recognizing the propriety of giving the district attorney the aid of other counsel in the prosecution of important or intricate cases, by chapter 354, Laws 1887, have provided “that the circuit judges, within their respective circuits, are authorized in their discretion to appoint counsel to assist the district attorney in the prosecution of persons charged with crime in all cases when the crime charged is punishable by imprisonment in the state prison. Such additional counsel shall be paid in the same manner as now provided by law for the payment of counsel for indigent criminals.” This last act was undoubtedly passed, recognizing the fact that in some criminal cases there was great propriety if not the necessity for furnishing the district attorney aid in their prosecutions. The propriety of such aid had been recognized by this court in the cases cited below; and it may be reasonably inferred that this act was passed to sanction the custom of the courts which had grown up in the state of allowing the district attorney the aid of assistant counsel in difficult cases, and at the same time to regulate and limit it to the appointment of counsel who are not paid by private parties, but from the public funds, thereby placing the assistant attorney in the same impartial and unprejudiced position as the prosecuting attorney. It cannot be claimed that either before or since the passage of the act of 1887 private parties could thrust their hired attorneys into the courts to take charge of or assist the district attorney in the prosecution of any criminal case, without the consent of the court and the district attorney. Whenever attorneys other than the district attorney have been heretofore permitted to appear in a criminal case, they have come in by the consent of both the court and the district attorney, and not upon any claim of right to be there by the employment of private individuals. Heretofore no case has come before this court where the trial judge has permitted any one to appear as the assistant of the district attorney when it was shown that he was employed by private parties, and came into court at their request. In this case, defendant, by his counsel, offered to show on the trial of this case the status of Mr. Austin, who appeared in court to aid in the prosecution of the defendant. Before entering upon the trial the counsel for the defendant stated to the court: “I desire, before counsel, other than those employed by the state, proceed to take part in the trial of this case by act or conduct, to raise the question so that it shall appear upon the record that on behalf of the defendant we enter our protest and objection against the appearance on behalf of the state of any person employed for reward by any private association or private person. Such we charge to be the condition which the counsel who has just risen for the state occupies, and we offer (unless it be admitted) to prove that fact upon the record, so that we may have the ruling of the court.” To this proposition the learned judge of the municipal court replied: “This court has always refused to go into the investigation as to compensation of counsel.” The counselfor the defendant answered: “We do not desire to prove the amount of compensation the attorney is to receive, but offer to show that he is employed by an organization known as the ‘Sailors' Union,’ so that we stand in fact defending ourselves against the union.” The court then remarked: “What do you gentlemen say on the other side?” The district attorney replied: “The only thing I can say about the...