Garrad v. State

• Decision Date: 06 December 1927
• Citation: 194 Wis. 391,216 N.W. 496
• Parties: GARRAD v. STATE.
• Court: Wisconsin Supreme Court

194 Wis. 391

216 N.W. 496

GARRAD

v.STATE.

Supreme Court of Wisconsin.

Dec. 6, 1927.

Error to Review a Judgment of the Municipal Court of Milwaukee County; George A. Shaughnessy, Judge. Reversed.

James Garrad was convicted of having advised the commission of a felony, and he brings error. Reversed and remanded.--[By Editorial Staff.]

The plaintiff in error waived a jury trial, was found guilty, and fined $100 and costs upon an information charging that he did on March 4, 1927, in said county, feloniously “advise the commission of a felony as defined in section 353.31, to wit, the crime of sodomy, and which crime then and there failed in being committed.”

The facts were testified to by the complaining witness, a girl over 21, and her girl companion. The defendant offered no evidence.Jacob S. Rothstein, of Milwaukee, for plaintiff in error.

John W. Reynolds, Atty. Gen., and Eugene Wengert, Dist. Atty., and C. Stanley Perry, Asst. Dist, Atty., both of Milwaukee, for the State.

ESCHWEILER, J.

Section 353.31, Stats., referred to in the information, supra, reads:

“The term ‘felony,’ when used in any statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in a state prison.”

[1] This information was challenged below and is here on the alleged ground that sodomy is not such a felony as comes within the statute upon which this prosecution is based, viz., section 340.52:

“Any person who shall advise the commission of or attempt to commit any felony as defined in sec. 353.31, that shall fail in being committed, the punishment for which such advice or attempt is not otherwise prescribed in these statutes, shall be imprisoned in the state prison not more than three years, * * * or by fine not * * * less than one hundred dollars.”

This was created by chapter 34 of the Laws of 1901, as new section 4385a, and appears to have been passed upon by this court but once, in Rudolph v. State, 128 Wis. 222, 227, 228, 107 N. W. 466, 116 Am. St. Rep. 32, affirming a conviction for having solicited a bribe, and directly holding that such soliciting was one of the felonies within said section.

There is cited by the defendant on this point State v. Goodrich, 84 Wis. 359, 360, 54 N. W. 577. That case, however, did not pass upon the statute here involved, viz., 340.52 (4385a), but upon what is now section 340.51 (4385), which has been in force substantially as now since as early as the Revised Statutes of 1849 (c. 133, § 45). That statute then and now, in punishing assaults with intent to commit, or the advice or attempt to commit felonies, expressly names burglary, robbery, rape, or mayhem, and arson, and the Goodrich Case, supra, only held that all such mentioned felonies being crimes in which force and nonconsent of the injured party are essential, that under a familiar rule for construction of penal statutes, the term “any other felony” would not include the offense of adultery. The same statute and the Goodrich Case were passed upon in State v. Lewis, 113 Wis. 391, 89 N. W. 143, and there it was held, contrary to a ruling below on habeas corpus, that larceny from the person was within the term “other felony” in said section 4385 (now 340.51).

The statute here, 340.52, supra, has no such limiting specifications of felonies, is broad and general, and sodomy being punishable by state prison sentence is a felony within that statute. There is no force in this objection.

Plaintiff in error asserts here, and claims to have raised the question in the court below, that the evidence fails to disclose that any “felony” was advised or solicited to be committed. In the bill of exceptions as prepared and presented on behalf of plaintiff in error and made a part of the record, as well as in the rest of the record transmitted here, there was nothing to show that the defendant below presented to the trial court such question. The reporter's minutes of the proceedings at the trial showed that at the close of the testimony only the following took place, namely: “State rests. Defendant rests.” In the printed case, however, there was inserted between the two sentences just above quoted the following:

“Defendant's counsel moves to discharge the defendant on the ground that there is not sufficient evidence to establish any crime.”

Upon this situation being called to the attention of counsel, leave was granted to have the record returned, when a further certificate was made by the trial court and returned with the original record whereby the above insertion in the printed case is now made a part of the record.

[2] There is no excuse for such practice by attorneys, officers of the court, on behalf of any one seeking to have a record reviewed. A printed case or statements in briefs with reference to proceedings should be planted upon the record and not, as was apparently claimed here, upon counsel's recollection or impression of what the record was. Such an omission, if there was one, should have been discovered and corrected before the case was prepared and sent here. Submitted as it was, it gave us the usual and customary assurance upon which we ought to be able to rely that the record was in fact as the printed case purported it to be. We should regret extremely to find it necessary to always carefully check over and compare with the record itself statements made by counsel in case or brief, and we will not tolerate repeated offenses such as this. This court has, fortunately, but rarely had to call attention to matters of this nature, and we trust that such situations will be presented still more rarely in the future.

On defendant's second...