Koscak v. State

• Decision Date: 23 March 1915
• Citation: 160 Wis. 255,152 N.W. 181
• Parties: KOSCAK v. STATE.
• Court: Wisconsin Supreme Court

160 Wis. 255

152 N.W. 181

KOSCAK

v.STATE.

Supreme Court of Wisconsin.

March 23, 1915.

Barnes, J., dissenting.

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

George Koscak was convicted of a crime, and he brings error. Reversed and remanded.

The plaintiff in error (hereinafter called the “defendant”) was convicted in the Kenosha county circuit court of buying, transporting, and having in his possession dynamite, with the intent that it should be used for the unlawful purposes denounced in section 4398a, Stats. 1913, or knowing that such dynamite was intended to be used by other persons for such unlawful purposes. On March 25, 1914, the court sentenced the defendant to imprisonment in the state prison for a term of five years. For review of the judgment of conviction and sentence the defendant prosecutes this writ of error.

The record shows that the defendant, in September, 1909, was in the employ of the Thomas B. Jeffery Company, at the city of Kenosha, Wis., and that he claims that he was injured at about this time while in such service and that the injury resulted in breaking three of his ribs. During the following six months he did not do full work, but received full pay, and thereafter, until May 29, 1913, he was furnished light employment and was paid $2 the day. Later, while attempting to move a shed building at his home, he claims to have been disabled, which prevented him from returning to his work Monday, May 29, 1913. On that day he was discharged from service on account of his failure to return to his work. Shortly thereafter he called upon Charles Jeffery and asked to be re-employed and was informed by Mr. Jeffery to call at his office the following day. Defendant did so, and learned that Mr. Jeffery was not present, and he was then referred to a Mr. Taylor, who acted for the company and requested defendant to return at 3 o'clock p. m. Defendant appeared at this time, and Taylor informed him that he could not secure re-employment and accused him of deception in claiming that his ribs were broken while in the service of the Jeffery Company, and asserted that his ribs were injured in Cleveland, Ohio. Koscak testified that he saw Charles Jeffery at the office later in the afternoon, after Taylor informed him that Jeffery would not be there for a long time. On July 9, 1913, the defendant sent a letter to Charles Jeffery complaining of Taylor's treatment of him and of their refusal to reinstate him in the company's service. The letter contains the following:

“So I told your Taylor that it was the last time I was there and by you also.

Now I am asking you for the last time will you pay me for my three ribs, which I got broken in your factory? or not? I know that you have plenty of money so buy me my health back and new ribs, and I never ask you any more although I know that you can't get me my ribs back, so please think it over as I don't wish to be played with any more. I know that you have lots of everything so you can play with people that has no bread to eat.

Now Mr. Jeffery, I will wait 3 more days for your answer. After that I will not wait any longer, then you see what a poor man can do, in short time. Then I am going to play with all that plays with me now. You will lose your millions just as I lost my ribs. Hoping to get satisfactory answer, I will remain yours truly,

Geo. Koscak,

37 North Main.”

The defendant wrote this letter in Croatian, his native language, and had one Mrs. Sheba translate it into English. He told Mrs. Sheba that he had the power to put Mr. Jeffery into sickness and keep him sick until defendant released him. Defendant also testified upon the trial that he possessed such power, but had sworn off using it when he married and came to this country; he also told the detective Poppic that he possessed such power. When Mr. Jeffery received this letter, he evidently became alarmed concerning the safety of his property and his person, and he immediately conferred with Mr. De Cou, manager of the Jeffery Company's business, and directed him to confer with Mr. Burns in charge of a detective agency at Chicago. Mr. Jeffery also communicated with defendant at once requesting to see him, and on Monday, July 14th, defendant and his daughter called upon Mr. Jeffery in answer to his letter, and defendant asked for permanent employment or pay for his injuries. The company had him examined and a skiagraph taken to ascertain the condition of his ribs and, after conferences with him, employed him to do light work at $2 the day. The defendant apparently started at this work about July 26th. The evidence tends to show that a Mr. Lewis of the Burns Agency was at Kenosha within a few days after Jeffery received the defendant's letter until he was succeeded on the 30th of July by a detective named Brunswick. Mr. Lewis evidently directed his efforts to watching defendant's movements, and nothing is shown indicating that he observed anything unusual in defendant's conduct or acts. Brunswick remained until August 2d, when he was discharged at De Cou's request upon the ground that he was not trustworthy. Brunswick made written reports to the agency at their Chicago headquarters, stating that defendant was a dangerous man, and he also reported this in effect to Mr. De Cou in person. After Brunswick's discharge from the case he had trouble with the Burns Agency. He testified at the trial stating that defendant had told him while working with him at the factory that he was well satisfied as things then were between him and the Jeffery Company. He also testified that Mr. De Cou suggested to him to undertake a different scheme to catch defendant and that he must be put in prison. De Cou denies all of Brunswick's charge of any plotting by him and the detectives to induce defendant to commit some offense. Brunswick testified that his reports to the effect that defendant was a dangerous man were false. Brunswick was followed by Detective Prendergast on August 7th, who was principally engaged in watching defendant and the homes of De Cou and Jeffery. Prendergast testified that he was thereafter discharged from service of the Burns Agency; that while engaged as detective in Kenosha on the Koscak case he had instructions from Hanson and Thompson, who were his superiors in the detective agency, to get the defendant and if necessary shoot him while upon the premises of De Cou. Mr. De Cou, testifying on this point, denies that he approved of shooting Koscak, but states that Prendergast proposed it, and that he remonstrated and told Prendergast that he would not countenance killing defendant or any one on his premises; he approved of having defendant decoyed upon his premises and there arrested before injuring him, his family or property. Prendergast also testified in effect that De Cou suggested that defendant be induced to enter into a scheme of using dynamite to destroy De Cou's home; also, that his superior Hanson complained to him about the failure to get defendant, and that Hanson told him they were going to get the detective Poppic to get in with defendant and tempt him to steal some property; and that defendant refused to be a party to a theft, and that it was then proposed to have Poppic and defendant discharged from service and thus arouse defendant's feeling of revenge and to have Poppic work with him for revenge and then frame up something on defendant. All of this was denied by Hanson and De Cou.

It appears that Prendergast was convicted of an offense and imprisoned for 24 days, that his arrest in this case took place while in the employ of the Burns Agency, and that this led him to entertain ill feelings against the agency. On August 14th, Detective Poppic was assigned to Kenosha and directed to take up this investigation. Poppic worked at the Jeffery establishment ostensibly as an employé and became acquainted with the defendant. Poppic planned a scheme of appearing to steal valuable articles from the company and acquainted defendant with his designs of thievery, but found defendant unwilling to join him, as he expressed it:

“He (defendant) says to me: ‘That is all right. You can steal how much you want; I am not going to do it.’ I says: ‘That is all right; I will do it myself.’ ”

This failure of trapping defendant into thievery occurred Saturday, August 16th. The following Friday, August 22d, the Jeffery Company went through the form of discharging Poppic from service as a factory employé, and on the next day, Saturday, defendant was discharged from service by the company. That evening Poppic visited dedefendant at his home and, as he reported to the agency, found defendant and his family in a state of excitement about defendant's discharge from service, which led defendant to unburden his troubles to Poppic. The report shows that Poppic played the part of an injured discharged employé and pretended that he was defendant's friend and that he would join defendant in seeking revenge on De Cou for their unjustifiable discharge from service, declaring:

“I (Poppic) grabbed his (defendant's) hand, and I said: ‘Yes, I will get revenge on the man that discharged and insulted me. But listen’, I said to him, ‘we cannot do anything now. To-morrow when I will come at 11 a. m. We will plan to-night, and to-morrow we will advise ourselves which is the best place, but keep quiet about it. * * * As far as I can see, Mr. De Cou's life is in danger, and it makes me feel doubtful about my own. My plan will be to dynamite Mr. De Cou's house.’ ”

On the trial Poppic testified in denial of these specific facts of the interview and states that the following day, Sunday, when he took dinner with the family of defendant, they talked over the matter of discharge, but states nothing of revenge or the use of dynamite. But in his report to the agency of his interview he again refers to the subject of dynamiting De Cou's home for revenge, and that defendant suggested gasoline, which Poppic...