Huebner v. State

• Decision Date: 19 March 1907
• Citation: 111 N.W. 63,131 Wis. 162
• Parties: HUEBNER v. STATE.
• Court: Wisconsin Supreme Court

131 Wis. 162

111 N.W. 63

HUEBNER

v.STATE.^*

Supreme Court of Wisconsin.

March 19, 1907.

Error to Circuit Court, Price County; John K. Parish, Judge.

Mary Huebner was convicted of murder, and she brings error. Affirmed.James Smith (G. E. Schwindt, of counsel), for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and J. E. Messerschmidt, State Law Examiner, for the State.

WINSLOW, J.

The plaintiff in error was prosecuted upon the charge of murdering her newly born bastard child. It appeared that the child was found dead in an outbuilding or henhouse on the premises of the accused, where the delivery had taken place a few hours previously, with a cloth or rag wrapped several times around its neck, and another rag stuffed in its mouth. No one was present when the delivery took place, except the mother herself. There was a spring lock on the door of the henhouse, and it appears that the accused came out of the henhouse shortly after the birth, shutting the door, and leaving the baby in the building, and made her way with the help of a daughter to her dwelling, where she went to bed, and a physician was called. She testified that she remembered nothing after the birth of the child. There was evidence showing that the door of the the house was locked, and that no person had access to it after the birth and before the child was found until the physician who had been summoned to attend the accused went to the henhouse and found the child in the condition described. There was a verdict of murder in the first degree, and the accused sued out a writ of error to reverse the judgment rendered on the verdict. The errors alleged will be considered in their order.

1. The jury was finally selected, and the challenges on both sides exhausted, near the close of a day's session, and the court allowed the jury to separate for the night, under a strict caution not to speak with any one concerning the case. Upon the following morning at the opening of court the jurymen took their places, and, after having severally satisfied the court in answer to questions that they had obeyed the instructions of the court during the recess, they were sworn, and the trial commenced. It is claimed that the court committed prejudicial error in allowing the jurymen to separate, although they had not yet been sworn. We have not been referred to any authorities in support of this proposition. The rule is well settled that, if a jury in a capital case is allowed to separate during the trial, a verdict of conviction will be set aside, unless it be made to appear positively that such separation was not followed by improper conduct on their part, nor by any circumstance calculated to exert an improper influence on the verdict. State v. Dolling, 37 Wis. 396;Hempton v. State, 111 Wis. 127, 86 N. W. 596. This rule only applies, however, after the jury has been sworn and the trial commenced. This court has held that, where 11 jurors accepted by the parties in a capital case were allowed to separate before the panel was filled, and it did not appear that any of them had been improperly influenced, no prejudicial error was committed. Clifford v. State, 58 Wis. 477, 17 N. W. 304. The weight of authority...