Lavalley v. State
| Decision Date | 20 October 1925 |
| Parties | LAVALLEY v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Waupaca County; Byron B. Park, Judge.
Arthur C. Lavalley was convicted of rape, and brings error. Reversed and remanded, with directions.L. D. Smith, of Waupaca, for plaintiff in error.
H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., B. R. Goggins, Sp. Asst. Dist. Atty., of Wisconsin Rapids, and Otto L. Olen, Dist. Atty., of Clintonville, for the State.
[1] Plaintiff in error (hereinafter called the defendant) was convicted of the crime of rape upon a female 12 years of age, who will hereinafter be referred to as the prosecuting witness. The principal contention urged for a reversal of the judgment is that the verdict of guilty is not supported by the evidence. It seems that no good purpose will be subserved by setting forth the evidence in detail. It has received the most careful attention of this court, and the conclusion is reached, perhaps rather reluctantly, that the evidence presents a jury question, under the rules established by this court in such cases. It may be said that, if the members of this court were sitting as a jury, a verdict of guilty would not be unanimously reached upon the evidence.
[2] The defendant attempted to establish an alibi, to support which he produced witnesses who testified to his presence at times and places wholly inconsistent with his guilt. There were two trials of this case. Upon the second trial, resulting in the judgment here under review, one witness, who testified on the first trial that he saw the prosecuting witness at a time and place inconsistent with defendant's guilt, testified that he did not see her at such time and place, admitted that he so testified on the first trial, but had come to the conclusion that he was in error. He did not advise the defendant that he so concluded, or that he proposed to change his testimony, but, on the contrary, advised the defendant and his attorney that his testimony would be the same as that given on the first trial, down to the evening of the day before he was placed upon the stand. His change of testimony came as a complete surprise to the defendant, and it is apparent that he testified falsely, either upon the first or upon the second trial. This is another circumstance that is not reassuring upon the question of defendant's guilt. However, it is not only the right but the duty of a witness to correct his testimony when convinced that he was in error, and the weight to be accorded his evidence under such circumstances is for the jury, under well-established principles. This is also true of the evidence relating to the alibi, and, while a consideration of the evidence may not be convincing to the minds of all the members of this court concerning the defendant's guilt, it must be held that it was within the province of the jury to render a verdict of guilty, and the judgment cannot be disturbed on the ground that it is unsupported by the evidence in the case.
[3][4][5] Error is also assigned because the state was permitted to prove that the defendant was intoxicated at 2 o'clock in the morning of the day upon which the alleged crime was committed, the time of the commission of the crime being between 6 and 9 o'clock on the evening of that day. The state introduced evidence showing the movements and whereabouts of the defendant for a day or two before the commission of the crime. This was proper, especially in view of defendant's alibi defense. As a part of this testimony, one witness testified that the defendant came to his house at 2 o'clock in the morning in an intoxicated condition. We think it was error to permit the witness to testify to his intoxicated condition at 2 o'clock in the morning. That could have no possible relation to the commission of the crime between 6 and 9 o'clock in the evening. But we are not impressed with the view that the admission of such evidence constituted prejudicial error, under all the circumstances of this case. Besides, it is doubtful whether the proper objection to the introduction of such testimony was made to preserve the question for review.
[6] Certain alleged misconduct of the sheriff and one of the jurors is also relied upon as a ground for reversal. It appears that the court adjourned in the evening after the attorney for the defendant had concluded his argument to the jury but before the prosecuting attorney had closed his argument. There was a dance that night some 10 or 12 miles from Waupaca. A juror with two of his friends were seeking means to go to the dance. His friends told the juror that they were going to ride with the sheriff and thought there was room for him also. He requested his friends to ask the sheriff if he might ride to the dance in the sheriff's automobile. They said they would do so, but, upon meeting the juror a little later, said they had concluded to go in another automobile, and they were sure he could ride with the sheriff. He saw the sheriff and asked if he could ride to the dance with him, and was advised that he could. He did ride to the dance in the sheriff's automobile. He sat in the back seat, the sheriff and his wife sitting in the front seat. His two friends immediatly followed behind the sheriff's automobile in their car. The sheriff was going to this dance for the purpose of preserving order, and, upon arriving thereat, the sheriff went about his official duties. The juror danced once with the sheriff's wife, and, rather early in the evening, returned to Waupaca with his two friends in their automobile.
The matter was brought to the attention of the trial court by a motion of the defendant to set aside the verdict because of the misconduct of the sheriff and of this juror. Affidavits were presented to the trial court setting forth fully the circumstances, declaring that nothing was said about the case, and that no attempt was made in any way, shape, or manner to influence the juror's judgment, resulting in a denial of the motion by the lower court.
The defendant's attorney vigorously urges this misconduct as a ground for setting aside the verdict. We regard the question thus raised as a serious one, and have given it much consideration.
That the conduct of both the juror and the sheriff was indiscreet and improper is plain, and this even though full credit be given to the affidavits of the sheriff and the juror to the effect that the case was not mentioned between them, and that there was no effort made at any time to improperly influence the conduct of the juror. This will more clearly appear as we proceed.
From the very origin of the institution of the jury, courts have most jealously guarded their deliberations from influences extraneous the evidence, upon which only verdicts should be based. In an early day the jury was kept together and denied both food and drink from the time they were impaneled until the verdict was rendered. As late as 1796 Lord Kenyon established precedent by adjourning court until the next morning, the court having sat 13 hours, observing that necessity justified what it compelled, and that, though it was left to modern times to bring forth cases of such extraordinary length, no rule could compel them to continue sitting longer than their natural powers would endure. This practice was indulged to protect the jury from any and every kind of outside influence, and was departed from only as necessity compelled. Of course such practice could not obtain in this day, but the practice is still preserved, probably in every state of this Union, of keeping the jury together, and isolated from every outside influence, in capital cases. Speaking of this usage of the common law, the Nevada court expresses the opinion:
“That whenever that is properly adjudged lawful which, according to the rigor of the ancient law, was unlawful, there have concurred a real or supposed necessity, a consequent power in the court to license the act, and the express or implied consent of the court to the doing of it.” Sacramento and Meredith Mining Co. v. Showers, 6 Nev. 291, 299.
Questions often arise as to whether the separation of a jury in capital cases vitiates the verdict, and it is generally held that, prima facie, such an irregularity calls for a new trial, and the onus is on the prosecution to show affirmatively that the jury had not been tampered with. Where that is made to plainly appear the verdict is not set aside. Butler v. State, 72 Ala. 179;Wood v. State, 34 Ark. 341, 36 Am. Rep. 13;Commonwealth v. Wormley, 8 Grat. (49 Va.) 712, 56 Am. Dec. 162;Boles v. State, 13 Smedes & M. (Miss.) 398;Manna v. State, 179 Wis. 384, 192 N. W. 160; Bishop's New Crim. Pro. vol. II (2d Ed.) § 998a, and cases there cited.
[7] It is a general principle, also, that, where a juror has been treated, fed, or entertained by the successful party or his counsel, the verdict will be set aside, without reference to the question whether or not the verdict was right; this for the reason that it is deemed by most courts as an indispensable rule of public policy to preserve the purity of the verdict. Thus in Walker v. Hunter, 17 Ga. 364, 414, a new trial was granted for the reason that, while the cause was pending, one of the counsel for the prevailing party entertained two jurors at his house, the court saying:
In Drake v. Newton, 23 N. J. Law, 111, the verdict of the jury was set aside because the prevailing party entertained the jurors with eating and drinking during the progress of the trial, the court saying:
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