Grottkau v. State

• Decision Date: 10 January 1888
• Citation: 36 N.W. 31,70 Wis. 462
• Parties: GROTTKAU v. STATE.
• Court: Wisconsin Supreme Court

70 Wis. 462

36 N.W. 31

GROTTKAU

v.STATE.

Supreme Court of Wisconsin.

January 10, 1888.

Error to municipal court of Milwaukee; A. SCOTT SLOAN, Judge.

The plaintiff in error and one Albert Moessinger were indicted in the municipal court for Milwaukee county, June 1, 1886. The indictment contained six several counts; the first of which was to the effect that said Grottkau and Moessinger, together with divers other evil-disposed persons to the number of five and more, to the jurors yet unknown, on April 24, 1886, at the city of Milwaukee, did unlawfully assemble in a violent and tumultuous manner to do an unlawful act, to the terror and disturbance of others, against the peace and dignity of the state of Wisconsin. This was followed in the indictment by five several counts, in each of which they were charged with a conspiracy to incite a riot. The cause was first tried about the first of December, 1886, when the jury disagreed. April 4, 1887, a nolle prosequi was entered, on motion of the district attorney, as to the said Moessinger. Wednesday, April 27, 1887, the cause came on for trial in said municipal court, with Hon. A. SCOTT SLOAN, judge of the Thirteenth judicial circuit, presiding, whereupon a jury was impaneled and sworn; when the prosecuting attorney, on opening the case to the jury, read to them the last count of the indictment, and stated that Grottkau was to be tried upon that count “for riot and unlawful assembly only, and not for conspiracy. It was immediately discovered by the court, and counsel in the case, that the count of the indictment which had been read to the jury was a count for conspiracy; and the court announced that the trial would be on the first count of the indictment only, which was a count for riot and unlawful assembly, and that on the first trial of this case the counts for conspiracy in said indictment had been abandoned by the prosecution; and the court thereupon, before any testimony was taken, ordered and directed that the trial should proceed upon the first count of the indictment, and thereupon the trial was had upon that count only. On the present [last] trial of this action, all the testimony in the case was directed and applicable only to the first count of said indictment, which was for riot and unlawful assembly, and there was no testimony whatever offered by the prosecution upon the remaining counts in said indictment, which were each and all for conspiracy only.” The trial continued from April 27, 1887, to May 3, 1887, inclusive, except the trial was adjourned Friday, April 29th, to Monday, May 2d. May 3, 1887, the jury “brought in a verdict of guilty, as charged in the indictment,” and the court thereupon suspended sentence until the further order of the court. During the trial, nine witnesses were sworn on the part of the state, and twelve on the part of the accused, but the record contains no part of such testimony, nor any of the rulings of the court upon said trial, except as above or hereinafter stated. May 7, 1887, the attorney for the prisoner moved the court for a new trial upon the grounds that “the verdict was general,” and rendered under the circumstances stated; and “for the misconduct of the jury.” Several affidavits and some testimony relating to such alleged misconduct of two of the jurymen, and the incompetency of another, is presented in the bill of exceptions. The court denied the motion, and “thereupon adjudged, and it is the sentence of the court now here, that you, Paul Grottkau, be punished by confinement at hard labor in the house of correction of Milwaukee county for and during the full term of one year.” From that judgment the accused brings this writ of error.

W. H. Ebbets, for plaintiff in error.

C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for defendant in error.

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

There is no intimation of any lack of evidence to support the conviction. There is no claim that any evidence on the part of the state was improperly admitted. There is no claim that any evidence on the part of the defense was improperly rejected. No part of the motion for a new trial was based upon any want of evidence to support the verdict. The failure of the accused to make any of the evidence upon the merits, or any of the rulings of the court thereon, a part of the record, are implied confessions that his guilt was sufficiently established by the testimony, and that such rulings throughout were fair and impartial. The several errors assigned, are all based upon the refusal of the court to set aside the verdict and grant a new trial. These will be considered in the inverse order in which they were urged by the learned counsel for the defense.

1. The mere inadvertence of the district attorney in reading the last count of the indictment instead of the first, in connection with his statement to the jury that the accused was to be tried “for riot and unlawful assembly only, and not for conspiracy,” immediately followed by a correction and direction from the court, “that the trial would be on the first count of the indictment only,” and then explaining the nature of the charge on that count, could, and confessedly did, mislead no one, and certainly is no ground for reversal.

2. It is conceded that it was understood by all at the trial that the accused was being tried only for the crime of unlawful assembly and riot, and, consequently, that no testimony was offered under any of the other counts. But it is urged that such understanding in no way relieves or obviates the alleged error of record in receiving a general verdict, without having formally entered a nolle prosequi upon the other counts in the indictment, or any acquittal upon those counts, or any direction to the jury to confine their verdict to the first count upon which he was so tried. No part of the charge to the jury is in the record. We have no knowledge, therefore, as to what directions were or were not therein given. We have no right to infer any direction or want of direction which would militate against the verdict; on the contrary, we are bound to presume, in the absence of the charge, that the directions therein were most favorable to support the verdict. Graves v. State, 12 Wis. 595;Bowen v. Malbon, 20 Wis. 491. It has been held that explicit instructions as to the form and effect of the verdict in such case prevents what otherwise might be error. State v. Smith 18 S. C. 149. The court here “ ordered and directed that the trial should proceed upon the first count of the indictment,” after the district attorney had made the statement mentioned, and the same had been fully corrected and explained by the court, as above stated, with the announcement “that the trial would be on the first count of the indictment only.” All that occurred, when taken together, as shown by the record, was, as we think, equivalent to, and in effect the entry of, a nolle prosequi as to all the counts in the indictment except the first, which is conceded to be the only one upon which the accused was tried. Besides, it may be observed that the punishment for the offense charged in each of the several counts of the indictment was the same. Sections 4511, 4512, Rev. St. The accused was only tried upon the first count in the indictment. The sentence imposed was no greater than that authorized upon a conviction under that count alone. Certainly, the accused was in no way prejudiced. In these respects the case differs from Carter v. State, 20 Wis. 647, cited by counsel. It is more like State v. Kube, 20 Wis. 217, 91 Amer. Dec. 390. It is substantially the same as Nelson v. State, 52 Wis. 534, 9 N. W. Rep. 388, in which it was in effect held that where one is charged in separate counts with different crimes, each of which was subject to the same punishment, a general verdict of guilty was sufficient, without specifying the count to which it related. We must hold that it was not error for the trial court to refuse to set aside the verdict by reason of its generality.

3. On the motion for a new trial, two affidavits were presented, sworn to by Waterman and Edward G. Wegner, three or four days after the rendition of the verdict, to the effect that George C. Bingham, the foreman of the jury, on the first day of the trial, Wednesday, April 27, 1887, and after he had been sworn as such, and the court had adjourned for the day, stated in their presence, at a time and place named, that “Grottkau is going to be found guilty anyhow,” after having sworn as to his qualification as a juryman, in effect, that he had formed no opinion, and did not think he had expressed any opinion as to the guilt or innocence of the accused. In opposition thereto, an affidavit of said foreman was presented, to the effect that he had read said two affidavits; that he did not know either of the persons making the same; that he “did not at the time and place stated, or at any other time and place during the trial of said cause, state that ‘Grottkau is going to be found guilty anyhow,’ or any words to that effect, or gave any opinion as to the result of the case until after the verdict was rendered.” The issue thus presented between the foreman and the makers of the two affidavits...