Jessner v. State

• Decision Date: 23 June 1930
• Citation: 231 N.W. 634,202 Wis. 184
• Parties: JESSNER v. STATE.
• Court: Wisconsin Supreme Court

202 Wis. 184

231 N.W. 634

JESSNER

v.STATE.

Supreme Court of Wisconsin.

June 23, 1930.

Error to the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Affirmed.

The plaintiff in error, Rudolph Jessner, was convicted of murder in the first degree, and brings writ of error to review the judgment.Wylie & Whipple, of Madison, for plaintiff in error.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Philip La Follette, Sp. Counsel, of Madison, for the State.

OWEN, J.

Plaintiff in error (hereinafter called the defendant) was convicted of murder in the first degree. The sufficiency of the evidence to support the verdict is not challenged. The errors which it is claimed require a reversal of the judgment are those arising during the course of the trial. The most important and conclusive of these presents the question of the constitutionality of section 357.12, Stats., appearing below.

357.12 Expert Witnesses. (1) Experts to be appointed by judge. Whenever, in any criminal case, expert opinion evidence becomes necessary or desirable the judge of the trial court may after notice to the parties and a hearing, appoint one or more disinterested qualified experts not exceeding three, to testify at the trial. Before entering upon such investigation such experts shall take and subscribe the following oath, before the judge making the appointment or some officer designated by him: “I do solemnly swear that I will make a faithful and impartial examination of the matters to be investigated by me and that I will make a true report thereon according to the best of my knowledge, belief and understanding. So help me God.” The compensation of such expert witnesses shall be fixed by the court and paid by the county upon the order of the court as a part of the costs of the action. The receipt by any expert witness summoned under this section of any other compensation than so fixed by the court and paid by the county, or the offer or promise by any person to pay such other compensation shall be unlawful and punishable as contempt of court. The fact that such expert witnesses have been appointed by the court shall be made known to the jury, but they shall be subject to cross-examination by both parties, who may also summon other expert witnesses at the trial, but the court may impose reasonable limitations upon the number of witnesses who may give opinion evidence on the same subject.

(2) Experts to Examine Accused. No testimony regarding the mental condition of the accused shall be received from witnesses summoned by the accused until the expert witnesses summoned by the prosecution have been given an opportunity to examine and observe the accused, if such opportunity shall have been seasonably demanded.

(3) Accused may be Committed to Hospital. Whenever the existence of mental disease on the part of the accused, at the time of the trial, is suggested or becomes the subject of inquiry, the presiding judge of the court before which the accused is to be tried or is being tried may, after reasonable notice and opportunity for hearing, commit the accused to a state or county hospital or asylum for the insane to be detained there for a reasonable time, to be fixed by the court, for the purpose of observation, but the court may proceed under section 357.13. In case of commitment to a hospital the court shall direct the superintendent of the hospital to permit all the expert witnesses summoned in the case to have free access to the accused for the purpose of observation. The court may also direct the chief physician of the hospital to prepare a report regarding the mental condition of the accused. This report may be introduced in evidence at the trial under the oath of the said chief physician who may be cross-examined regarding the report by counsel for both parties.

(4) Experts, Written Reports of. Each expert witness appointed by the court may be required by the court to prepare a written brief report under oath upon the mental condition of the person in question and such report shall be filed with the clerk at such time as may be fixed by the court. Such report may with the permission of the court be read by the witness at the trial. [1921 c. 126; Stats. 1923 s. 4066--1 to 4066--4; 1925 c. 4]

357.13 Insanity at the time of trial or conviction. (1) If the court shall be informed, in any manner, that any person indicted or informed against for any offense probably is, at the time of his trial, or after his conviction and before commitment, insane, or feeble-minded and thereby incapacitated to act for himself, the court shall, in a summary manner, make inquisition thereof by a jury or otherwise as it deems most proper.

(2) If it shall be determined by such inquisition that such accused person is insane or feeble-minded his trial, sentence, or commitment for such offense shall be postponed indefinitely, and the court shall thereupon order that he be confined in the central state hospital for the insane or in an institution to be designated by the board of control.

(3) Upon the recovery of such person from his insanity or feeble-mindedness the said superintendent shall notify the court in which such indictment or information is pending of such recovery, and said court shall thereupon issue to the sheriff of the county a warrant requiring him to take such accused person into his custody and confine him in the county jail of said county pending trial, sentence, or commitment for such offense; but such person may be released on recognizance or bail as provided in chapter 361.

(4) If it shall be determined, pursuant to section 51.11, that the insanity or feeble-mindedness of such accused person is incurable he shall be treated and disposed of as persons incurably insane or feebleminded are required by law to be treated; but no such person shall be removed or discharged from said hospital or home except upon the order of the court having jurisdiction of such person for trial, sentence or commitment. [R. S. 1849, c. 148, s. 13; R. S. 1858, c. 179, s. 11 ; R. S. 1878, s. 4700; Stats. 1898 s. 4700; 1917 c. 620; Stats. 1917 s. 584; 1919 c. 347 s. 30; Stats. 1923 s. 4700; 1925 c. 4; 1927 c. 81] Annotated^* Experts were appointed by the court to investigate and report upon the sanity of the defendant at the time of the trial, and were later called to testify concerning his sanity at the time of the commission of the act, all under and in accordance with the provisions of this statute. It is claimed that this statute violates various constitutional provisions, all designed to protect the rights of accused persons, and that the use made of these experts upon the trial was an invasion of the defendant's constitutional rights and deprived him of a constitutional trial.

The assault thus made upon this statute is highly important. Its enactment was in response to a well-settled conviction that, in criminal cases at least, where the interests of society were involved, there should be some technical evidence from unprejudiced and reliable sources. This conviction grew out of the belief that under the then existing procedure there was a striking tendency on the part of experts to accommodate their opinions to the necessities of that side of the case upon which they were testifying, and that such opinions were to a very large extent prejudicial and unreliable. To secure the reliable and unprejudiced opinions of the ablest experts in such cases, to the end that the purest degree of justice might be promoted, the board of circuit judges sponsored the enactment of this statute. If this statute must be condemned as unconstitutional, it will require retracement of most significant forward steps in judicial procedure, and bring regret to all who believe in steady progress towards the attainment of a more perfect justice.

[1] The challenge of the constitutionality of the statute is most vigorous and intelligent, fortified by cogency of logic, supported by an array of authorities (important, however, only by way of analogy) that not only bespeaks the industry of counsel but arouses most earnest consideration. First of all, it is said that the statute violates section 8, art. 1, of our Constitution, prohibiting compulsory self-incrimination. This contention is based upon a construction of the law which, it is argued, authorizes such an observation, examination, and investigation of the accused as constitutes an invasion of the rights of privacy which constitutional provisions against unreasonable search and exemption of accused from being a witness against himself protect.

In answer to this contention, the able special counsel, who prosecuted the case in the trial court, maintains that the constitutional provision against self-incrimination does not apply to the question of the sanity of the accused; that it protects the accused from supplying any link in the chain of evidence to establish the conclusion that he committed the act which the law denounces, but that it has no application to the inquiry as to his mental responsibility at the time the act was committed; that his mental responsibility becomes a separate and distinct issue when the accused introduces the defense of insanity; and that, although his ultimate guilt depends upon his mental condition at the time of the commission of the act, it has no bearing upon the question of whether he committed the act, and that the issue voluntarily tendered necessarily involves an investigation of, and an inquiry into, matters which are essentially and sacredly personal. In other words, the issue thus tendered invites an inquiry into the mental condition of the accused at the time of the commission of the offense. He is presumed to have been sane, unless he voluntarily claims otherwise, and upon making that claim he cannot frustrate a complete investigation and examination by which alone the truth may be known. The cogency of this contention is appreciated, but, as we...