Birmingham v. State
| Decision Date | 31 January 1911 |
| Citation | 145 Wis. 90,129 N.W. 670 |
| Parties | BIRMINGHAM v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Chippewa County; A. J. Vinje, Judge.
Mike Birmingham was convicted of burglary, and he brings error. Affirmed.
The plaintiff in error (hereinafter called the defendant) was tried on an information charging him with burglary in the nighttime, under section 4409, St. 1898. The jury returned a verdict of guilty, and the defendant was sentenced to imprisonment for 10 years. The defendant prosecutes a writ of error in this court to reverse the judgment of conviction, and relies on the following errors for a reversal of the judgment: (1) Failure of the court to discharge the defendant because the evidence produced at the preliminary examination was not sufficient to warrant the examining magistrate in finding that there was probable cause to believe the defendant guilty of the offense charged; (2) in charging and in failing to charge the jury; (3) in admitting incompetent testimony; (4) in refusing to discharge the defendant because the evidence offered on the trial was insufficient to sustain a verdict of guilty.V. W. James, for plaintiff in error.
Levi H. Bancroft, Atty. Gen., A. C. Titus, Asst. Atty. Gen., and Alexander Wiley, Dist. Atty., for the State.
BARNES, J. (after stating the facts as above).
The trial court did not err in refusing to discharge the defendant on the ground that the evidence before the examining magistrate was insufficient to warrant a finding that there was probable cause to believe him guilty of the offense charged, first, because an examination of the testimony taken at the preliminary hearing convinces us that it was sufficient to warrant the examining magistrate in holding the defendant for trial; and, second, under section 4654, St. 1898, the objection could only be taken by a plea in abatement, and no such plea was interposed.
Complaint is made of the charge to the jury. The alleged error consists of an act of omission rather than one of commission. Little fault is found with what the court said and little fault could be found with it, because, to say the least, as far as it went it was beyond criticism. But it is urged that the charge was not complete, in that the court failed to instruct the jury fully on certain matters. No instructions were asked by the defendant, and hence no error was committed.McCummins v. State, 132 Wis. 236, 112 N. W. 25;Larson v. Foss, 137 Wis. 304, 118 N. W. 804;Van de Bogart v. Marinette & Menominee Paper Co., 127 Wis. 104, 106 N. W. 805;Hepler v. State, 58 Wis. 46, 16 N. W. 42;Sullivan v. State, 100 Wis. 283, 75 N. W. 956.
Two errors are assigned on the admission of evidence. The testimony complained of might not have been very convincing, but it was competent.
The principal contention of the defendant, and the one in reference to which we entertain the gravest doubts, is that the evidence offered on the trial was not...
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State v. Glass
...therefor. State v. Montgomery, 9 N. D. 405, 83 N. W. 873. See, also, People v. Carter, 117 Mich. 576, 76 N. W. 90;Birmingham v. State, 145 Wis. 90, 129 N. W. 670;Guenther v. State, 137 Wis. 183, 118 N. W. 640;State v. Frazer, 23 S. D. 304, 121 N. W. 790;State v. Jones, 145 Iowa, 176, 123 N.......
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State v. Glass
... ... And this ... court has held that it is not error for the trial court to ... omit a definition of reasonable doubt in the absence of a ... request therefor. State v. Montgomery, 9 N.D. 405, ... 83 N.W. 873. See also People v. Carter, 117 Mich ... 576, [29 N.D. 635] 76 N.W. 90; Birmingham v. State, ... 145 Wis. 90, 129 N.W. 670; Guenther v. State, 137 ... Wis. 183, 118 N.W. 640; State v. Frazer, 23 S.D ... 304, 121 N.W. 790; State v. Jones, 145 Iowa 176, 123 ... N.W. 960; Territory v. Chartrand, 1 Dak. 379, 46 ... N.W. 583; State v. Woods, 24 N.D. 156, 139 N.W. 321 ... ...
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Clemens v. State
...been found in favor of the state, the verdict cannot now, under the repeated decisions of this court, be disturbed. Birmingham v. State, 145 Wis. 90, 129 N. W. 670;Van Haltren v. State, 142 Wis. 143, 124 N. W. 1039;Imperio v. State, 153 Wis. 455, 141 N. W. 241. Counsel for plaintiff in erro......
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Mark v. State
...a plea in abatement.” No plea in abatement was interposed and therefore the information in any event was not invalidated. Birmingham v. State, 145 Wis. 90, 129 N.W. 670;Stetson v. State, 204 Wis. 250, 235 N.W. 539. [6] While the defendant appears to be familiar with sec. 355.17, which autho......