Flynn v. State

Citation97 Wis. 44,72 N.W. 373
PartiesFLYNN v. STATE.
Decision Date28 September 1897
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

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

Nicholas Flynn was convicted of murder in the second degree, and brings error. Affirmed.

The plaintiff in error was convicted of the crime of murder in the second degree, on an information which charged that he “did feloniously, willfully, and of malice aforethought, kill and murder one William Sullivan.” When it came to the impaneling of the jury to try the cause, it appeared that several of the persons whose names were on the general panel for the term had been summoned on a special venire, which had been issued in blank as to the names of the persons to be summoned, and filled by the sheriff with the names of persons selected by him, from the county at large. The plaintiff in error objected to having the names of these persons put into the box among the names to be drawn from for jurors in the case. The objection was put upon the ground that these persons had not been selected according to law. The contention was that jurors to fill a regular panel could be selected only from the names on the list returned as petit jurors, by the supervisors, as provided by chapter 126 of the Laws of 1895. His objection was overruled, and the names were put into the box. It was then found that it still lacked of a full panel of 36 jurors. The plaintiff in error protested that he could be required to proceed only with a full panel. So another special venire, in the same form, was issued, and the panel was filled. The plaintiff in error made the same objection to these jurors, that they had not been legally selected. He said there was no objection to any of the men themselves; they were unexceptionable; but the objection was to the manner of their selection only. After the jurors of the regular panel, so filled, had been exhausted by challenges and excuses, and the trial jury not yet secured, the court issued another special venire, in the same form, for 50 additional jurors. The plaintiff in error made the same objection to the persons which this venire brought, which was, in like manner, overruled, and the work of impaneling the jury proceeded. While the plaintiff in error had yet remaining two peremptory challenges, his counsel announced to the court that he would waive his further challenges, and “will accept the jury.” Thereupon the court inquired if any juror of foreign birth had not obtained “his full citizen papers.” One who had come to this country when a child was doubtful if his father had secured his full papers before the juror had become of age. He was excused, against the protest of the plaintiff in error. Another juror was called, and, after examination on his voir dire, accepted. The counsel of plaintiff in error announced, “It is satisfactory to us.” The jury was then sworn, and the trial proceeded. The plaintiff in error was convicted of murder in the second degree, and sentenced to a term of 14 years in the state prison. To reverse that conviction, he brings writ of error.Richard Sleight, for plaintiff in error.

W. H. Mylrea, Atty. Gen., for the State.

NEWMAN, J. (after stating the facts).

The plaintiff in error urges three several grounds of error on which he claims a reversal of the conviction: (1) “The court erred in trying the defendant for murder in the first degree, when the information filed, and upon which the defendant was arraigned, charged the offense of murder in the second degree only;” (2) “the court erred in refusing to impanel the jury according to law;” and (3) “the verdict is contrary to the evidence.”

1. The first ground of error is not happily stated. It is of little interest now upon what theory the plaintiff in error was tried, if his conviction of murder in the second degree was produced fairly, and without the intervention of error. The purpose of the trial was to ascertain if the plaintiff in error was guilty of the homicide, and to determine the degree of his guilt. It involved the investigation of all the circumstances of the crime. The degree of guilt could be known only as the result of the trial. The form of the trial must be the same, whatever the degree of guilt. What was intended by this specification of error is, probably, only that the court erred in that part of its charge wherein the jury were advised to find the defendant guilty of murder in the first degree if they should find from the evidence that the homicide was committed from premeditated design to effect the death of the person killed. This, of course, is error unless the information did charge murder in the first degree; for no conviction of an offense of which the defendant was not charged in the information could be sustained. But it would be a harmless error, because it evidently had no effect on the verdict. That an information in this form does charge the offense of murder in the first degree is not an open question in this state, however it might be at common law and in the absence of a statute regulating the matter of criminal pleadings. The statute (Rev. St. § 4660) declares that an information in the form used shall be sufficient to charge the crime of murder. It has been held by this court, in repeated decisions, that it is competent, under an information in that form, to convict of murder in the first degree. Rowan v. State, 30 Wis. 129; Hogan v. State, Id. 428; State v. Sloan, 65 Wis. 467, 27 N. W. 616;Allen v. State, 85 Wis. 22, 54 N. W. 999. It is a mere matter of criminal pleading, within the undoubted competency of the legislature to direct. The defendant cannot be misled by it as to the nature of the accusation against him He is assumed to know the statute and the decisions,--to know the law. If he does not in fact know it, his attorney will find it out, and inform him. That is a part of his function.

2. It is not important to inquire or determine...

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23 cases
  • State v. Fuerte
    • United States
    • Wisconsin Supreme Court
    • December 19, 2017
    ...was enacted in its current form in 1969, though the concept goes back much further. See § 63, ch. 255, Laws of 1969; Flynn v. State, 97 Wis. 44, 47, 72 N.W. 373 (1897) (referencing "harmless error"). When Wisconsin Stat. § 971.08(2) was created in 1986, the legislature was well aware of the......
  • DiLlon v. State
    • United States
    • Wisconsin Supreme Court
    • January 26, 1909
    ...of this degree of homicide. Under the decisions of this court in the cases of Odette v. State, 90 Wis. 258, 62 N. W. 1054,Flynn v. State, 97 Wis. 44, 72 N. W. 373, and Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809, the court was clearly right in its submission of murd......
  • Moore v. St. Louis Transit Company
    • United States
    • Missouri Supreme Court
    • March 30, 1910
    ... ... nine days thereafter, is not contrary to any law or custom of ... procedure that obtains in this State; and where the court ... holds such stipulation binding upon the party or his attorney ... who seeks without cause to evade it, in violation of ... 119; Goldsmith v. Candy Co., ... 85 Mo.App. 595; Fulton Co. v. Amorous, 89 Ga. 614; ... Bennett v. Iron Co., 34 P. 61; Flynn v ... State, 72 N.W. 373; Hannurn v. State, 90 Tenn ... 647; Miller v. Wilson, 24 P. 114; Ellis v ... State, 25 Fla. 702; Rosch v ... ...
  • Spick v. State
    • United States
    • Wisconsin Supreme Court
    • June 5, 1909
    ...the last conclusion, if any support by way of judicial precedents is required: Clifford v. State, 58 Wis. 477, 17 N. W. 304;Flynn v. State, 97 Wis. 44, 72 N. W. 373;Odette v. State, 90 Wis. 258, 62 N. W. 1054;Eckert v. State, 114 Wis. 160, 89 N. W. 826;Johnson v. State, 129 Wis. 146, 108 N.......
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