Gillotti v. State

• Decision Date: 08 May 1908
• Court: Wisconsin Supreme Court
• Parties: GILLOTTI ET AL. v. STATE.

135 Wis. 634

116 N.W. 252

GILLOTTI ET AL.

v.STATE.

Supreme Court of Wisconsin.

May 8, 1908.

Error to Circuit Court, Kenosha County; E. B. Belden, Judge.

Charles Gillotti and others were convicted of robbery, and they bring error. Reversed and remanded.

Error to the circuit court for Kenosha county.

The information charged three distinct offenses. Plaintiffs in error were found guilty of a charge made in these words:

“I, Robert Verne Baker, district attorney for said Kenosha county, hereby further inform the court that on the said 20th day of December, in the year A. D. 1907, at said county, Charles Gillotti, Emanuel Capello and Joseph Catuso, in and upon Nicola Sacchi, then and there being, feloniously did make an assault, and then and there nineteen dollars lawful money of the United States, of the value of nineteen dollars, two shot-guns and one revolver, of the value of twenty-five dollars, of the money, goods and chattels of him, the said Nicola Sacchi, from the person and against the will of the said Nicola Sacchi, then and there feloniously, forcibly and by violence, and by putting him, said Nicola Sacchi, in fear, did take, steal and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin.”

There was evidence tending to show that Nicola Sacchi, the complaining witness, who lived in a shanty about a quarter of a mile from the Northwestern depot in Berryville, Kenosha county, Wisconsin, about 7 o'clock p. m. of December 20, 1907, was robbed by five men, three of whom were plaintiffs in error, in manner and form as charged in the information. There was no question upon the trial but that an offense of the nature of the one charged, or one of a more serious nature, was by five men committed at the time and place alleged. Plaintiffs in error offered testimony tending to prove that they were not the guilty parties.

Marshall, Siebecker, and Kerwin, JJ., dissenting in part.Wallace Ingalls, for plaintiffs in error.

F. L. Gilbert, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Robert Verne Baker, Dist. Atty., for the State.

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

The first contention in behalf of plaintiffs in error is that the jury did not find them guilty of any offense known to the law. The state, answering such contention, claims that the count in the information covered by the verdict substantially charges the offense specified in section 4378, St. 1898, which provides that “any person who shall, by force and violence or by assault and putting in fear, feloniously rob, steal and take from the person of another any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be punished by imprisonmentin the state prison not more than seven years nor less than one year.”

It will be seen that the statute calls for either the characteristic of “force and violence” or “assault and putting in fear” to constitute the offense mentioned. The first of such alternatives, it is considered, is substantially covered by the language of the information “forcibly and by violence.” There is no appreciable distinction between the two expressions. One could not perpetrate an offense “forcibly and by violence” without doing so by force and violence. To make a distinction between the two expressions fatal to an information, especially after conviction, would be a most clear violation of the statutory demand and the settled judicial policy that “the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party. * * *” Section 2829, St. 1898.

In any case under section 4378, St. 1898, the offense is required to be characterized by absence of the element “of armed with a dangerous weapon” as to the offender. In case of his being so armed, all other essentials of the offense being present, the crime is of a higher grade and covered by some one of the other sections of the statutes relating to robbery from the person. The charge in the information is silent as to such characteristic and so, relying on the reasoning in People v. Calvin, 60 Mich. 113, 26 N. W. 851, where under statutes relating to robbery from the person similar to ours it was held that a failure to charge either that the offender was or that he was not “armed with a dangerous weapon,” rendered the information insufficient to satisfy either grade of the offense. Manifestly, such failure would render a charge insufficient to satisfy the statute as to any grade which requires the element of “armed with a dangerous weapon,” but to hold that neglect to charge absence of such characteristic is fatal as to the lowest grade of the offense does seem, “as claimed by the state,” extremely technical and entirely out of harmony with the policy of our system heretofore indicated. It would seem, looking to the substance of things, that an allegation as to whether the offender was “armed with a dangerous weapon” is only essential to show that the offense is one of a higher degree than the lowest which would include the latter.

It is the opinion of the court, as counsel for the state insist, that a less technical rule for testing the sufficiency of an information charging the lesser of several degrees of crime of the same general character, has been adopted by this court and notably in State v. Kane, 63 Wis. 260, 23 N. W. 488. This general rule is there established: “Every circumstance necessary to an exact description of the offense as defined by the statute creating it must be critically set forth.” That “is limited to entire and distinct offenses.” It does not apply “to different grades of the same general offense, where the higher grade is made to consist of certain special particulars or circumstances affirmatively expressed as the necessary ingredients of the offense, and a lower grade thereof is made complete by excluding certain elements of the higher grade by negative words. Charging the lower grade, and leaving out or omitting such elements of the higher, is a full and complete allegation of the lower grade, without alleging specifically that they are omitted by the use of such negative words as the statute uses only for the purpose of creating it.” That seems to apply clearly to the situation before us.

The court recognized the existence of a different rule in some jurisdictions, but approved the one adopted in Massachusetts, citing Phillips v. Commonwealth, 3 Metc. 588, and Larned v. Commonwealth, 12 Metc. 240, and held that such had long been the rule here, citing Lacy v. State, 15 Wis. 13;Bell v. State, 20 Wis. 599.State v. Kroscher, 24 Wis. 64, is a very striking illustration of the rule. The indictment was under section 10, c. 165, Rev. St. 1858, now section 4408, St. 1898, providing that “every person who shall break and enter any dwelling house in the night time, with such intent as is mentioned in the next preceding section, or who having entered with such intent, shall break such dwelling house in the night time, the offender not being armed nor arming himself with a dangerous weapon,” etc., “shall be punished,” etc. It was held without noting that the rule governing the matter was established in Lacy v. State, supra, that it was not necessary to a good indictment under such section to negative the “being armed nor arming * * * with a dangerous weapon;” the element required to constitute a higher offense of burglary.

The principal litigated question on the trial was whether plaintiffs in error were of the five persons whom the complaining witness, Nicola Sacchi, claimed committed the robbery. It turned, in the main, on his evidence identifying them on the trial as guilty parties. His evidence in chief was somewhat discredited by that on cross-examination, the fact being that the accused persons were Italians and though he testified he had known Gillotti,...