Murphy v. State

• Decision Date: 05 April 1905
• Citation: 124 Wis. 635,102 N.W. 1087
• Parties: MURPHY v. STATE.
• Court: Wisconsin Supreme Court

124 Wis. 635

102 N.W. 1087

MURPHY

v.STATE.

Supreme Court of Wisconsin.

April 5, 1905.

Error to Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

William Murphy was convicted of accepting a bribe, and he brings error. Reversed.

This prosecution, instituted under section 4475, Rev. St. 1898, was commenced on the 4th day of September, 1903, by complaint made to and filed with the district court for Milwaukee county, charging the plaintiff in error--who will be designated hereafter as the defendant--with the offense of bribery. The court issued the warrant upon this complaint, and defendant was apprehended, and brought before the district court. Before any preliminary examination of defendant was held, an objection was interposed to any further proceedings in the case, and a motion was made for defendant's discharge from arrest, upon the ground that no proper and sufficient complaint had been made in the case. The court overruled this objection and motion, and proceeded with the preliminary examination. At the conclusion the court determined that an offense had been committed, and bound the defendant over for trial before the municipal court for Milwaukee county. Thereafter an information was filed against defendant charging him with the offense of bribery, for which he had been held for trial. To this the defendant pleaded not guilty, without prejudice, and with leave to change his plea if he was so advised. Under this privilege defendant was given leave to withdraw his plea and file a plea in abatement of the action, alleging that no proper and legal preliminary examination had been held, for the reason that the judge of the district court had no jurisdiction of the person of the defendant or of the subject-matter of the alleged cause, and because no legal and sufficient complaint had been filed therein. An affidavit of prejudice having been filed by defendant, alleging that the judge of the district court was prejudiced in the matter, an order was made changing the venue to the circuit court for Milwaukee county. After a demurrer had been interposed to such plea in abatement, on May 11, 1904, the circuit court ruled that the merits of the plea should be considered, and thereupon overruled the plea. On the same day defendant demurred in writing to the information upon the ground that it appears upon its face that it stated no offense, in that the ordinance with reference to which it is alleged that defendant had accepted the bribe pertained to a transaction not within the power and jurisdiction of the common council of the city of Milwaukee, of which defendant was a member. The court overruled this demurrer, and on October 10, 1904, the case being called for trial, defendant moved the court to dismiss the information upon the grounds that defendant had appeared as a witness before the grand jury, which had been called for the December, 1901, term of the municipal court for Milwaukee county, and had given testimony before this grand jury with reference to the matter, transaction, and thing alleged in the information, and was therefore entitled to the immunity provided for under the provisions of section 4078, Rev. St. 1898, as amended by chapter 85, p. 106, Laws 1901. The court denied this motion upon the ground that the matters covered by the motion should be alleged by a special plea in bar. Thereupon defendant filed such plea, setting out the matters of the motion, and upon his refusal to further plead the court ordered a plea of not guilty to be entered for him. A jury having been duly impaneled, the cause proceeded to trial before the jury. The issue raised by the special plea in bar was tried first. The defendant, to sustain his plea in bar, introduced evidence tending to show that a grand jury was called and attended upon the municipal court for the December, 1901, term, and that he was subpœnaed to appear before them, and that he did so appear on January 9, 1902; that the jury made a report to the municipal court; and that the clerk of this jury had taken minutes of the proceedings of the jury, as required by law, which minutes had been given to the district attorney for Milwaukee county. The district attorney was thereupon sworn as a witness, and asked to produce such minutes for the purpose of introducing them as evidence to show upon what transaction, matter, and thing this defendant gave testimony before the grand jury when he so appeared and testified before them. Upon objection by the state to such demand the court ruled that upon the ground that all proceedings before the grand jury were privileged, except in so far as the statute permits them to be disclosed and received in evidence, the witness could not be compelled to produce the minutes for the purpose for which they were sought to be used, and that grand jurors and officers in attendance before them were incompetent as witnesses, except to contradict or sustain a witness called upon the trial. No further testimony was offered on the special plea in bar, and the court directed the jury to find against the defendant on the plea interposed by him. The trial upon the general issue of not guilty was then proceeded with. The state produced evidence to sustain the issue on its part. Defendant declined to cross-examine witnesses, and when the prosecution rested its case a motion was made for the discharge of the defendant because of fatal variance between the evidence adduced and the allegations of the information. This motion was denied. Defendant offered no evidence in the case, and submitted no argument to the jury.

Before the case was submitted, the following instructions, which defendant requested to have given to the jury, were refused: “(1) Under the testimony in this case the witnesses Oscar F. Davis and William I. Davis are what, in the law, is known as accomplices; that is, persons aiding or assisting in the commission of a crime. Although an accomplice is a competent witness, yet the jury ought not to convict the defendant upon the testimony of any accomplice or accomplices, unless such testimony is corroborated in some material part. (2) You are instructed that unless the testimony of the witnesses Oscar F. Davis and William I. Davis is corroborated in some material matter tending directly to connect the defendant with the offense charged--that is, tending to corroborate the testimony of said witnesses that the defendant received the sum of eighty ($80) dollars, with the intent that defendant's official should be influenced thereby--you ought not to convict the defendant, and your verdict should be not guilty. (3) You are instructed that unless there is credible testimony in this case in addition to and in corroboration of, the testimony of the witnesses Oscar F. Davis and William I. Davis, which, taken in connection with their testimony, is sufficient to satisfy your minds beyond a reasonable doubt as to some material fact tending directly to prove that the defendant on the day in question corruptly received the sum of eighty ($80) dollars under an agreement and understanding that his official conduct should be influenced thereby, you should acquit the defendant. (4) The offense charged in the information consists of two elements, viz.: First, an agreement or understanding between the witnesses Oscar F. Davis and William I. Davis and the defendant that the defendant was to receive eighty ($80) dollars, with the intent and for the purpose of corruptly influencing him personally in his vote, action, and decision with reference to the ordinance in question; and, second, that the eighty dollars was paid and accepted in pursuance of such agreement and understanding. (5) You are instructed that if you find from the evidence that eighty ($80) dollars was paid to the defendant with the understanding or agreement that such money was to be used to influence the vote, action, and decision of other members of the common council, and not to influence the defendant in his official action with reference to the ordinance in question, then you cannot convict the defendant under this information, and your verdict must be ‘Not guilty.’ (6) You are also instructed that, in order to find a verdict of guilty, you must be convinced beyond a reasonable doubt that the money was paid to the defendant and accepted by him for the purpose of influencing him in his own official action with reference to the ordinance in question. (7) If you find that the money was paid by the witness Oscar F. Davis, and received by the defendant, this fact in itself is not sufficient to establish a corrupt agreement and understanding and a corrupt acceptance of said money for the purpose of influencing the official action of the defendant with reference to the ordinance in question. (8) In addition to the instructions already given as to the necessity of the testimony of an accomplice or accomplices being corroborated, you are further instructed that the testimony of the witness William I. Davis cannot and does not corroborate the testimony of the witness Oscar F. Davis; neither does the testimony of the witness Oscar F. Davis corroborate the testimony of the witness William I. Davis. One accomplice cannot corroborate the testimony of another accomplice.”

The case was submitted to the jury under instructions from the court and upon the evidence received. The jury found defendant guilty as charged in the information. A motion for a new trial, made in due time, was denied, and judgment was awarded on the verdict of the jury, defendant being sentenced to imprisonment in the Milwaukee House of Correction for the term of one year. He prosecutes this writ of error, directed to the circuit court for Milwaukee county, for a review of the proceedings in the case, and asks that the judgment be reversed upon the errors assigned in the record.A. C. Umbreit, John M. Clarke, and Hoyt, Doe, Umbreit & Olwell, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and...