Newbern v. State

• Decision Date: 02 April 1935
• Citation: 260 N.W. 236,222 Wis. 291
• Parties: NEWBERN v. STATE.
• Court: Wisconsin Supreme Court

222 Wis. 291

260 N.W. 236

NEWBERN

v.STATE.

Supreme Court of Wisconsin.

April 2, 1935.

Error to review a judgment of the Circuit Court for Dunn County; George Thompson. Circuit Judge.

Affirmed.

Robert Newbern was convicted of robbery of a bank, and prosecutes a writ of error to review the conviction. The facts necessary to an understanding of the issues raised upon the writ are stated in the opinion.

Willis E. Donley, of Menomonie, and Eugene A. Rerat and Neil Hughes, both of Minneapolis (Walter J. Welch, of Minneapolis, Minn., of counsel), for plaintiff in error.

James E. Finnegan, Atty. Gen., Cornelius P. Hanley, Sp. Asst. Atty. Gen., and A. W. Galvin, Dist. Atty., of Menomonie, for the State.

FOWLER, Justice.

The plaintiff in error, hereinafter referred to as the defendant, claims that (1) the evidence is insufficient to support the conviction, and that (2) he should be awarded a new trial because of statements made by a juror and in her presence during trial of the case.

1. The defendant was convicted of robbery of a bank in Menomonie by bandits, in the course of which one employee of the bank was shot by one of the bandits and wounded. Another employee was abducted by the robbers and by them left dead with a dead bandit beside the road a few miles from the city of Menomonie. Another bandit was found dead with a portion of the loot beside him some seventy miles from said city. One of the bandits was stationed outside the bank beside a large automobile in which the bandits made their escape, armed with a machine gun which until he was shot and killed he kept discharging to keep people away from the bank. The evidence shows conclusively that at least two bandits entered the bank, and leaves it uncertain whether three or more entered. According to the testimony of Mr. Rommelmeyer, the cashier of the bank, one of the bandits walked from the entrance to the bank across the lobby directly to his desk, drew and pointed a revolver at him, and commanded him to get back and lie down on the floor. Rommelmeyer did not comply immediately, but stood and looked at the bandit in the face. The bandit commanded him a second time to lie down, and again he did not respond immediately. The bandit then grabbed him by the arm, whirled him around, and shoved him through a door. From the bandit's entrance into the bank until he turned Rommelmeyer around, Rommelmeyer was looking at him all the time, and got another look at him while he was lying down. He did not see him thereafter during the robbery but recognized his voice in the lobby of the bank saying, “Take your time boys--there's lots of time,” and directing the bandits to “bring one of the girls” with them. Rommelmeyer described this bandit as weighing about 155 pounds, wearing a brown coat and brown hat, and as having peculiar eyes as his outstanding feature. He was positive in his identification of the defendant as the man who pointed the gun at him and commanded him to lie down. Rommelmeyer saw the defendant in a “show-up” with several others in a jail at Minneapolis, and recognized him immediately as the bandit he saw in the bank. He recognized him by his eyes particularly and by his general build. In the meantime he had viewed a suspect at Duluth, one at Joliet, and two at Fort Leavenworth, Kan., none of whom he recognized. One of the two men seen by him at Fort Leavenworth was one whom the defense claimed to have proved accosted Rommelmeyer on the robbery charged.

Miss Gullickson, an employee of the bank, testified that she saw a bandit enter the bank, walk directly to Rommelmeyer, and point a gun at him, and heard him tell Rommelmeyer to “get back and lay down.” She had a clear vision and saw his face. She saw no other bandit. She identified the defendant as this bandit. She immediately recognized the defendant as this bandit in a “show-up” in Minneapolis some six months after Rommelmeyer's recognition of him there. Her identification was positive.

As weakening the force of the identifications of the defendant, the defense relies on the testimony of Mr. Austreng, a farmer and truck driver, who was talking with Rommelmeyer at the time the bandit accosted him, and Hedtlevedt, his sixteen year old nephew, who was with him at the time. These two were facing Rommelmeyer and had their backs to the bandit as he approached. The first either knew of the bandit's presence was when he came up behind them and “put his gun in Rommelmeyer's stomach.” They got a side view of the bandit but got a good look at him. They both testified that the defendant was not this bandit and that the bandit was two or three inches shorter than the defendant. On the trial these men were shown pictures of the men Rommelmeyer viewed at Fort Leavenworth. Austreng said one of the men resembled the bandit who accosted Rommelmeyer, but he was not sure. The boy said one of the two pictures resembled this bandit more than any other picture he was shown. This constitutes the evidence that the defense claims “proves” that the man Rommelmeyer saw at Leavenworth was the bandit who accosted him. The bandit was behind these witnesses as they went to lie down. The defendant took the stand and denied any participation in the robbery. He also testified that he was in Minneapolis at the time of the robbery and that he was at a service station getting his automobile serviced when a truck driver, that had driven through Menomonie the morning of the robbery after it occurred, arrived at the station and told of the robbery. This truck driver corroborated the defendant as to this, but from circumstances related by him the jury might properly have inferred that his meeting of the defendant at the service station occurred a week after the robbery when he also drove through Menomonie.

[1][2] We are of opinion that the evidence stated sustains the verdict of the jury. We cannot say that they were not justified in relying on the positive identification of the defendant by Rommelmeyer and Miss Gullickson. Rommelmeyer showed himself not disposed to convict anybody, by his refusal to place the crime upon the numerous other suspects he was taken to view. The credibility of the witnesses and the weight of their testimony was for the jury. If the testimony of these two witnesses that the defendant is the man who entered the bank and accosted Rommelmeyer at the time of the robbery is true, and the jury considered it was, the defendant is guilty of the crime charged. The trial judge refused to disturb the verdict, and in view of the evidence we cannot override his approval of it.

[3] 2. The jurors were not kept together during the trial. Two women jurors stayed at a boarding house kept by Mrs. Baxter where Miss Gullickson, the state's witness who identified defendant as one of the bank robbers, boarded and roomed. Miss Gullickson heard one of these jurors, Mrs. Fisher, say to the other, Mrs. Baskin, at the boarding house, referring to Hedtlevedt, one of the defense witnesses, the sixteen year old boy referred to in the statement of the evidence made in connection with 1, above: “My, that little boy certainly done fine. You can just see the truth coming from his lips.” This came to the attention of the state's attorney, and he called it to the attention of the trial judge. The trial judge thereupon called Miss Gullickson into his chambers, questioned her in presence of the defendant and his counsel and the state's counsel. It appeared from the examination that Mrs. Fisher made the remark quoted; that remarks were made in the house by the children of Mrs. Baxter about Miss Gullickson and her testimony; and that Miss Gullickson herself had talked some at the table about the trial with the Baxter children when the jurors were present. This talk appeared to be general, not about the merits of the case but about attendance and the like, and that the witness had said nothing herself to the jurors. The judge called in the landlady and examined her, and told her that Miss Gullickson should change her boarding place during the trial and that she should not say anything to the jurors about the matter. The trial proceeded. The defendant's counsel did not object to its continuance.

We are of opinion that the defendant and his counsel are estopped to claim prejudice or a new trial because of the matters disclosed at Miss Gullickson's examination. They evidently considered that what had occurred was to the defendant's advantage rather than...