O'Neill v. State

• Decision Date: 09 February 1926
• Citation: O'Neill v. State, 189 Wis. 259, 207 N.W. 280 (Wis. 1926)
• Parties: O'NEILL v. STATE.
• Court: Wisconsin Supreme Court

189 Wis. 259

207 N.W. 280

O'NEILL

v.STATE.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Error to Superior Court, Douglas County; Archibald McKay, Judge.

Dennis O'Neill was convicted of taking indecent liberties with a girl under the age of 16 years, and he brings error. Reversed and remanded.

The defendant was found guilty of taking indecent liberties with a girl under the age of 16 years and was sentenced to serve 19 months in the state penitentiary at Waupun.

The defendant conducted a barber shop in Superior, which was much frequented by young boys and girls, who were attracted to his shop by the curiosities which it contained, as well as by defendant's gifts of small sums of money, of fruit, and of sweets.

In the course of his argument to the jury the district attorney stated:

“This man is sending little girls down the primrose paths to hell, outside of the indecent liberties involved in this case.”

Upon objection being made the court ruled:

“If there was any such remark, I will instruct the jury not to pay any attention to it.”

Again during the argument of the district attorney defendant's counsel objected to the statement:

“Defendant's counsel stated that there was another way of handling this matter, and I say that the only other way was to kill him,” referring to the defendant.

The district attorney denied that he made that statement, but in answer to objection made and after ruling by the court, he said:

“Counsel says there is another way. What is his way to handle that question? I say there is no other way than the way I suggested, and we as law-abiding citizens could not do that.”

Each time that objection was made to these statements, the court instructed the jury to “pay no attention to those remarks.”Cadigan & Cadigan, of Superior (Jno. A. Cadigan, of Superior, of counsel), for plaintiff in error.

Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and R. E. Kennedy, Dist. Atty., of Superior, for the State.

STEVENS, J. (after stating the facts as above).

[1] The district attorney represents the commonwealth--a commonwealth which demands no victims--a commonwealth which “seeks justice only, equal and impartial justice. * * * It is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes.” Comm. v. Nicely, 130 Pa. 261, 270, 18 A. 737, 738;People v. Fielding, 158 N. Y. 542, 53 N. E. 497, 498, 46 L. R. A. 641, 70 Am. St. Rep. 495;State v. Kaufmann, 22 S. D. 433, 118 N. W. 337, 339;People v. Fong Sing, 38 Cal. App. 253, 175 P. 911, 916.

[2] The district attorney is a quasi judicial officer. State v. Russell, 83 Wis. 330, 338, 53 N. W. 441;State v. Kaufmann, 22 S. D. 433, 118 N. W. 337, 338; Comm. v. Nicely, 130 Pa. 261, 18 A. 737, 738. In the trial of a criminal case, “the code of ethics of the district attorney in all such matters cannot too closely follow the ethics of the bench.” Coon v. Metzler, 161 Wis. 328, 334, 154 N. W. 377, 379 (L. R. A. 1916B, 667). “A prosecutor should act not as a partisan eager to convict, but as an officer of the court, whose duty it is to aid in arriving at the truth in every case.” Hillen v. People, 59 Colo. 280, 287, 149 P. 250, 253. “His object, like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And, however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community.” Hurd v. People, 25 Mich. 406, 416. “No court has taken a higher view of the dignity of the office of district attorney than this court. ‘He is an officer of the state, * * * to see that the criminal laws of the state are honestly and impartially administered, * * * holding a position analogous to that of the judge who presides at the trial.’ ” State v. Russell, 83 Wis. 330, 337, 53 N. W. 441, 443. The district attorney is not a mere legal attorney. “He is a sworn minister of justice.” State v. Russell, 83 Wis. 330, 338, 53 N. W. 441, 444. “The defendant was entitled to a trial upon the evidence produced, unaffected by the statement of extrinsic facts or extraneous considerations,” such as those presented by the statements of the district attorney to which objection was made. Scott v. State, 91 Wis. 552, 557, 65 N. W. 61, 63. When a prosecuting officer makes such statements in his argument to the jury, “he tries his case upon unsworn statements and vilification, instead of evidence, and he obtains a verdict, if at all, based, in part at least, upon that which is not evidence, and which has no proper place in the trial.” Sullivan v. Collins, 107 Wis. 291, 299, 83 N. W. 310, 313.

The case presented to the jury a square conflict between the testimony of two witnesses--the defendant and the little girl who testified to the indecent liberties. It was a case in which the improper and inflammatory statements made by the district attorney in his argument to the jury might well have been the deciding factor in determining the verdict of the jury. There can be little doubt that these statements of the district attorney must have had their effect upon...