Koch v. State

• Decision Date: 09 January 1906
• Citation: 126 Wis. 470,106 N.W. 531
• Parties: KOCH v. STATE.
• Court: Wisconsin Supreme Court

126 Wis. 470

106 N.W. 531

KOCH

v.STATE.

Supreme Court of Wisconsin.

Jan. 9, 1906.

Error to Municipal Court, Milwaukee County; A. C. Brazee, Judge.

Edward Koch was convicted of larceny from the person, and he brings error. Reversed.

Plaintiff in error was tried jointly with one Meyers upon an information for robbery and larceny from the person under section 4378, Rev. St. 1898. At the close of the testimony on the evening of November 18, 1904, both parties stipulated, before the jury retired to deliberate on their verdict, that should they agree during the night and after the adjournment of court, they might write out their verdict, date it, and the foreman sign it, inclose it in an envelope, seal it up, and the foreman take it with him, and the jury retire from the jury room and return their verdict into court at the opening thereof the following morning. The jury were also told, before retiring, that they were not at liberty to state to any person what their verdict was, until they had delivered it into court. Before they retired, the court submitted to them the following forms of verdict: (1) We find the defendants guilty as charged. (2) We find the defendants guilty of larceny from the person. (3) We find the defendants guilty of assault, or, if you find one guilty and one not guilty, then you will so pronounce by your verdict. (4) We find the defendants not guilty. The jury retired at 5:30 p. m. and at about 8:45 p. m. agreed upon a verdict, which was reduced to writing, sealed in an envelope, and placed in possession of the foreman, and the jury then dispersed, and were discharged from the custody of the sheriff who had charge of them while deliberating. At the opening of court on the following morning, they entered the box and delivered to the court the following verdict: “Milwaukee, Nov. 18, 1904. We, the jury, find defendant, Mr. Meyers, guilty as charged. We, the jury, find the defendant, Mr. Koch, guilty for larceny and also recommend the court to be lenient with Mr. Koch. F. A. Woodford, Foreman.” Counsel for plaintiff in error moved that the verdict be recorded as read, whereupon the court replied that it would be recorded, but not until the court had requested the jury as to what their intentions were when they found plaintiff in error guilty of larceny. Counsel for plaintiff in error also objected to the jury being permitted to orally contradict their written verdict, which objection was overruled, and exception taken. The court then asked the jury if they meant to find plaintiff in error guilty of plain larceny, or larceny from the person, and the foreman answered: “Guilty of larceny from the person, is the way I understand it.” The court then instructed the clerk to ask each juror whether he meant to find plaintiff in error guilty of larceny, or larceny from the person, and upon being asked the question by the clerk, each juror answered that he meant to find him guilty of larceny from the person, to all of which counsel for plaintiff in error objected, and excepted to the proceedings and rulings of the court. Motion for new trial was made and denied, and the court sentenced Meyers and plaintiff in error each to a term of one year in the Wisconsin State Reformatory, from which judgment and conviction plaintiff in error sued out his writ of error.W. B. Rubin, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for the State.

KERWIN, J. (after stating the facts).

The errors assigned raise the following questions for review: First, the exclusion of testimony; second, whether the evidence was sufficient to sustain a conviction; third, whether error was committed in receiving and changing the written verdict; fourth, whether the court erred in refusing to instruct as requested, and in the instructions given.

1. The state produced as a witness one Kanter, who testified to facts tending to connect plaintiff in error with the crime charged. On cross-examination he was asked the following question: “Have you ever been arrested and convicted of being drunk and disorderly?” The question was objected to as incompetent, irrelevant, and immaterial, and the objection sustained, and this ruling is assigned as error. It is contended that the evidence sought to be adduced was proper under section 4073, Rev. St. 1898, and the ruling of this court in Colbert v. State, 104 N. W. 61. Section 4073 provides that a person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but the conviction may be proved to affect his credibility, either by the record or his own cross-examination. The question asked on cross-examination, therefore, was competent under the statute if an answer in the affirmative would tend to prove that the witness had been convicted of a criminal offense. Section 1561 makes it a criminal offense, punishable by fine and imprisonment, for any person to be found in any public place in such state of intoxication as to disturb others, or unable, by reason of his condition, to care for his own safety or the safety of others. While the question asked did not cover specifically all the elements going to make up the offense under this statute, it was fairly intended to draw from the witness evidence tending to prove his conviction under this statute. So far as the record shows, this was the only question asked upon the subject, and it being competent to prove conviction under this statute, the evidence was proper, and should have been admitted. Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 98 Am. St. Rep. 924. The question was not objected to because not sufficiently specific, and obviously was ruled out on the ground that evidence of conviction of this offense was not competent. No objection is made by the Attorney General that the question was not sufficiently specific to cover the criminal offense described in section 1561, Rev. St. 1898, but he insists that it was objectionable because it asked in one question two facts, one of which, as to arrest, was entirely immaterial. We cannot see that this objection is tenable. While it would not be proper to ask the witness whether he had ever been arrested, because an arrest would be wholly immaterial unless followed by conviction, such question would not be prejudicial error when followed by the further question relative to conviction. Thornton v. State, supra. So we are unable to see that there was any prejudicial error in embracing the two facts, arrest and conviction, in one question. Unless conviction could be proved, it would not be competent to prove arrest, and proof of arrest was only competent in connection with proof of conviction. Therefore there was no objection to the form of the question.

It is further contended by counsel for the state that the offense sought to be proved by the question is not a criminal offense under section 4073, Rev. St. 1898, because not made such in localities where there is a municipal ordinance or regulation for the punishment of drunkenness, and that in the city of Milwaukee such offense is so punishable. We have discovered no evidence in the record to the effect that there is any ordinance or regulation upon the subject in the city of Milwaukee, nor is the question confined to the commission of a criminal offense in the city of Milwaukee. So far as appears from the record and the form of the question asked, the criminal offense sought to be proved may as well have been committed in any other locality as in the city of Milwaukee, and obviously may have reference to the commission of an offense some place within the state of Wisconsin where there was no municipal ordinance or regulation respecting the matter. Section 1561 being in force in all parts of the state, and the question not being confined to any locality, it must be deemed to have reference to a locality where no municipal ordinance or regulation had been passed. In Colbert v. State, 104 N. W. 61, this court did not pass upon the question whether a conviction for breach of an ordinance was a conviction of a criminal offense under section 4073. The point was neither presented or brought to the attention of the court. After the defendant had denied that she lived in Milwaukee in 1889, or had ever been convicted, the state offered in evidence a certified copy of record of conviction of one Lucy La Blanche for violation of one of the city ordinances on November 18, 1889. The evidence also tended to show that defendant lived in Milwaukee in 1889, and was then known as Lucy or Lucille La Blanc or La Blanche, and the only question considered upon this ruling was whether the evidence showing identity of name was sufficient to establish prima facie identity of the person so as to authorize reception of the testimony as bearing on the question of credibility. Whether a conviction under an ordinance was a conviction of a criminal offense was neither raised nor considered. At common law, it was only convictions of crimes which rendered the person infamous that excluded him from being a witness, and it was regarded a point of no small difficulty to determine precisely the crime which rendered the perpetrator thus infamous. It was the infamy of the crime, not the nature or mode of punishment, that rendered the witness incompetent. 1 Greenl. on Ev. §§ 372, 373; Bartholomew v. People, 104 Ill. 601, 44 Am. Rep. 97;State v. Taylor, 98 Mo. 240, 11 S. W. 570. The rule of the common law, however, has been regulated by legislative enactment. In England, by statute, “a witness may be questioned as to whether he has been convicted of any felony or misdemeanor.” Taylor's Law of Ev. § 1437. Statutes exist in many of the states regulating the subject. In some states such statutes have been held to remove the common-law disability, and permit proof of former conviction of infamous crimes only to affect credibility. Card v. Foot, 57 Conn. 427, 18 Atl. 713; Bartholomew v. People, supra; Coble v....