Flamme v. State

• Decision Date: 04 May 1920
• Parties: FLAMME ET AL. v. STATE.
• Court: Wisconsin Supreme Court

171 Wis. 501

177 N.W. 596

FLAMME ET AL.

v.STATE.

Supreme Court of Wisconsin.

May 4, 1920.

Error to Circuit Court, Richland County; George Clementson, Judge.

Wesley A. Flamme and Mabel Banker were convicted, the former of adultery, the latter of fornication, and bring error. Reversed and remanded, with directions.

The information charged Wesley A. Flamme with the crime of adultery, committed with Mabel Banker, an unmarried woman, on May 22, 1919. In a separate count it charged Mabel Banker with the crime of fornication. The defendants, Wesley A. Flamme and Mabel Banker, were arrested upon separate complaints in separate actions and separately held for trial. They were first jointly proceeded against by the district attorney by the filing of one information in the circuit court.

Mabel Banker claims that a statement was obtained from her by coercion on the part of the district attorney on May 23, 1919; that the sheriff had appeared at her home earlier in the day, and she was requested to accompany him to the office of the district attorney; that she accompanied him under the impression that she was under arrest; that at first she denied the charges made against her by the district attorney; that no one told her that she was not obliged to incriminate herself, and that finally, after having been subjected to questioning for a period of over an hour, she was induced to sign a statement prepared by the district attorney, in which she confessed to the crime of fornication with Wesley A. Flamme on May 22, 1919, in the belief that she would not be prosecuted for the offense she confessed. Flamme was arrested, and a preliminary examination was held in the police court of Richland Center, in which Mabel Banker testified to the statement contained in her signed confession previously made to the district attorney. On cross–examination she testified that she did not make this statement voluntarily, but because she thought she had to. Counsel for defendant Flamme asked the court to instruct the witness that she could not be compelled to testify to anythingthat would incriminate her, which the court did not do. Wesley Flamme was held for trial in the county court of Richland Center on a charge of adultery. At the succeeding June term an affidavit of prejudice was filed on the first day of the term, and the case was transmitted to the circuit court.

On the first day of the term of county court Mabel Banker did not appear, and upon application of the district attorney a bench warrant was issued by the county court, and the sheriff brought her into court, where she was placed under bonds to appear at the next term of the circuit court as a witness for the state against Wesley Flamme. At that time she told the court that the statement she made to the district attorney was not true. On July 22, 1919, a warrant was issued charging Mabel Banker with having committed the crime of fornication with Wesley A. Flamme on May 22, 1919. A preliminary hearing was held before the police justice on July 23, 1919, in which the sheriff and one Robinson testified to the testimony given by Mabel Banker on the preliminary examination of Wesley A. Flamme. Mabel Banker was held for trial in the county court at the next regular term. The county court transmitted the case to the circuit court for Richland county, and at the September term the district attorney filed an information in which he joined both defendants, charging Wesley A. Flamme with adultery and Mabel Banker with fornication. A motion for separate trials for the defendants was denied.

Upon the trial of the case the defendant Banker repudiated her statement to the district attorney, denying any such relations with Wesley Flamme on May 22, 1919, or at any other time. The written statement made by her to the district attorney was never offered or received in evidence, but was used by the district attorney in his examination of witnesses during the trial, and after the jury had retired to deliberate upon their verdict the court permitted the written confession of Mabel Banker to be taken to the jury room and considered by the jury.

The jury returned a verdict finding the defendant Wesley A. Flamme guilty of adultery, and the defendant Mabel Banker guilty of the crime of fornication. A motion for a new trial was denied; sentence being suspended pending a hearing in this court. The case is brought here on a writ of error.

L. H. Bancroft, of Richland Center, for plaintiffs in error.

J. J. Blaine, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and E. F. Brindley, Dist. Atty., of Richland Center, for the State.

SIEBECKER, J. (after stating the facts as above).

[1] The main questions presented for decision are whether or not the confession of Mabel Banker to the district attorney was competent evidence and whether the court erred in refusing the defendants' requests for separate trials.

The facts concerning the confession made to the district attorney by Mabel Banker disclose that she at that time was 19 years of age; that she resided with her mother at their home in Richland Center; that the sheriff called at their house and asked her to accompany him to the office of the district attorney in the courthouse; that...