Mainville v. State

• Decision Date: 16 November 1920
• Citation: 179 N.W. 764,173 Wis. 12
• Parties: MAINVILLE v. STATE.
• Court: Wisconsin Supreme Court

173 Wis. 12

179 N.W. 764

MAINVILLE

v.STATE.

Supreme Court of Wisconsin.

Nov. 16, 1920.

Error to Municipal Court, Langlade County; Arthur Goodrick, Judge.

John Mainville was convicted of an assault with intent to do great bodily harm, and he brings error. Affirmed.

Plaintiff in error, John Mainville, hereinafter called the defendant, was charged with the crime of an assault being armed with a dangerous weapon with intent to kill one Mrs. Lillie, also with assault under section 4374a, and with an assault with intent to do great bodily harm under section 4377. He was convicted of the latter, and sentenced to three years' imprisonment in the state prison at Waupun. To review the correctness of such conviction he has sued out a writ of error to this court.Martin, Martin & Martin and G. F. Clifford, all of Green Bay, for plaintiff in error.

J. J. Blaine, Atty. Gen., J. F. Baker, Asst. Atty. Gen., and A. N. Whiting, Dist. Atty., of Antigo, for the State.

VINJE, J.

Since only procedural errors are assigned, the facts need not be stated in detail. It appears that defendant was living in Antigo with his wife, who was about 30 years of age; that she had known Parsons for over 15 years. Parsons was a widower, living with one Mrs. Lillie as his housekeeper, who defendant claims was also his mistress. Defendant further claims that Parsons had been intimate with his wife, and that Mrs. Lillie had connived and assisted Parsons in securing such intimacy. It is claimed that the day before the shooting defendant first learned through his wife of the relations existing between her and Parsons, and that on the day of the shooting he learned that such intimacy had first occurred when defendant's wife was only 13 years of age. The day of the shooting defendant bought a revolver and carried it with him. He and Parsons were railroad employés on the same run. Towards evening defendant went to the Parsons home, where he saw Parsons and Mrs. Lillie in the yard. He said, “I want to speak to you two a minute.” “Me, too?” Mrs. Lillie asked, and he said, “Yes.” The three walked to the rear of the house where he asked Parsons to sit down, and began to question him as to his relations with his wife. Mrs. Lillie became frightened, and sought to go into the house to telephone, but the defendant told her to stay right there or he would shoot her. After another question to Mr. Parsons he fired a shot at him. The latter started to run away, and defendant followed him past where Mrs. Lillie stood, and fired another shot at Parsons, who died shortly after from the effects of his wounds. As soon as defendant had fired his last shot at Parsons he turned around and fired at Mrs. Lillie. The shot took effect in her side, and she fell. While she was lying upon the ground defendant fired another shot at her and hit her in the neck. None of the wounds were fatal, and Mrs. Lillie was a witness upon the trial.

We are satisfied from the whole evidence that the defendant received a practical pardon from the jury as to the offense he was actually guilty of, and was convicted of the lessor offense because under the evidence they could not acquit him. The evidence of Mrs. Lillie and other eyewitnesses was too positive, direct, and conclusive, and the defense of self-defense, which had secured an acquittal on a former trial for the killing of Parsons, was not serviceable on this trial. The unwritten law was not effectively available against Mrs. Lillie.

Many errors of procedure are assigned and argued in the brief and orally. Only a few of them seem to be of sufficient importance to merit separate treatment.

[1] On February 10, 1920, the court, in pursuance of an arrangement made some time previously with counsel for defendant, proceeded to draw a jury or rather the nucleus for a jury pursuant to chapter 303, Laws of 1913, § 42. Twenty-eight names are drawn by the clerk from a jury list, and each party strikes alternately six, and those whose names remain are summoned as a venire in the case and each party is entitled to two peremptory challenges. The jury from then on is selected as in the circuit court. Defendant's counsel Mr. Martin was not present, though he knew when the jury would be drawn, and the court directed the defendant to strike or to call in counsel to assist him. The defendant exercised his strikes and the state its, and those not struck were summoned for the day of the trial, when the actual jury that tried him was impaneled. A great many talesmen were summoned before the jury was selected, and our attention is not called to any fact, nor can we conceive of any, whereby defendant was prejudiced by the absence of his counsel when the names were struck from the list drawn by the clerk. Counsel had full opportunity to examine each juror, and he availed himself of that opportunity when the trial was entered upon.

[2] Notwithstanding the fact that the case had been set for trial a long time in advance, at a date agreeable to counsel for defendant when set, he was not present at the opening of the trial, and asked for a continuance on the ground that he was engaged in the trial of another case in another court. The continuance was refused. Another member of the Martin firm, or a lawyer employed by the firm, was present, and it appears from the record that he ably defended the accused, and that the latter was in no wise prejudiced by the refusal of the continuance. Courts cannot await the convenience of attorneys, and especially of such busy attorneys as Mr. P. H. Martin. If they did, their work would never be done. It is, perhaps, a penalty that an able and busy lawyer pays that he cannot personally try every case that comes to his firm, or that he would like to try. But in these days of shorthand service it is quite easy to put any member of the firm in possession of the theory and points of the case, especially so where, as here, all are able lawyers, capable of handling difficult cases. This case presented no difficulties to the defense, except the facts constituting the offense, and these were beyond the cure of the most able and skillful lawyer.

[3] Judicial action upon an application for a continuance is a matter resting largely in the sound discretion of the trial court, and its refusal to grant it will not be interfered with, unless resulting in manifest prejudice to the party asking it. Miller v. State, 139 Wis. 57, and cases cited on page 66, 119 N. W. 850. We find no such prejudice here.

Error is alleged because peremptory challenges to the jurors Hanzel and Uphoven were not sustained. On the voir dire the juror Hanzel testified:

“I am not acquainted with the defendant. I lived in Antigo at the time of the shooting. I followed the other case when it was tried. I attended the court during its trial. I have discussed the guilt or innocence of the defendant with reference to Mrs. Lillie, and I have expressed an opinion, which I have at the present time, and which it would take evidence to remove. It shouldn't be so firmly fixed in my mind that it would influence me in...