Novkovic v. State

• Decision Date: 03 April 1912
• Citation: 149 Wis. 665,135 N.W. 465
• Parties: NOVKOVIC v. STATE.
• Court: Wisconsin Supreme Court

149 Wis. 665

135 N.W. 465

NOVKOVIC

v.STATE.

Supreme Court of Wisconsin.

April 3, 1912.

Error to Municipal Court of Milwaukee County; A. C. Backus, Judge.

Marie Novkovic was convicted of murder in the first degree, and she brings error. Affirmed.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of murder in the first degree. The murdered man, Steve Novkovic, was the husband of the defendant, and he was stabbed to death on the evening of July 23, 1911, by one Pajo Mravic. The evidence upon which the defendant was convicted, with the exception of a confession made by Mravic, was circumstantial. After the murder was discovered, the defendant and Mravic were taken to the office of the chief of police and interrogated. The defendant told her story first, and was followed by Mravic. Both were sworn and interrogated at the coroner's inquest; the defendant again being examined first. The principal difference between their statements related to the responsibilty of the defendant for the crime committed. Mravic stated that he had sustained illicit relations with the defendant for a considerable period of time before the murder was committed. That defendant expressed a desire to be rid of her husband, and encouraged him (Mravic) to kill him. That she said her husband was brutal to her, and a drunkard, and that in the event of his death she would get $800 from a society to which he belonged, and that with this money she and Mravic could have a good living. That she was getting no money from Mravic, and he was refusing to do anything to her husband, and they could not love each other any more. That on the day of the murder he went to Novkovic's boarding house about 4 o'clock in the afternoon, and the latter asked him to go to one of the parks and join a society he belonged to, and that he (Mravic) asked Mrs. Novkovic if she would go along with them, to which she replied that she would not, because he would not do anything to her husband “to get him away.” That he then said: “All right; if you want me to kill him, I will do it to-night, and you are going to get my head off with this.” To which she replied she would keep still about it. That he then told her to dress herself. That if she wanted him to do anything it would be to-night. That all three of them started for the park, first visiting the Zoo, and later going to another park. They seemed to have some difficulty in locating the park where the society to which Novkovic belonged was holding a picnic. They went to a saloon and had some drinks, then boarded a street car and went a couple of blocks to the end of the line, and then started on foot for the place where they were informed the picnic was. By this time, it was about half past 9 o'clock in the evening, and it was dark and raining. Mravic said the defendant was walking ahead, that he was next, and that Novkovic brought up the rear, and that defendant said to him: “There is nobody here. Now you got a chance to do it”--and that he answered, “Be quiet.” After proceeding a little farther, Mravic stabbed Novkovic in the throat, and inflicted about a score of wounds on him, any one of a half dozen of which would have been fatal. Defendant and Mravic then returned, and had sexual intercourse on the way home. The parties were Croatians, and could not speak English. There was a Croatian on the car on which they rode home; but defendant said nothing to him about the murder. On arriving home, she told her boarders that a couple of bums had done up her husband; but said she could not tell where they were when the attack was made.

The defendant admitted that she had sexual intercourse with Mravic a number of times before the murder, and also on the night of the murder, and after it was committed. In the statement made before the chief of police, she said these acts were not voluntary on her part, but that she submitted because she was afraid of Mravic. In the statement made before the coroner, she admitted acts of intercourse, including one act on the night the killing took place, but did not claim that she was acting under duress. In the statements made before the coroner and before the chief of police, she denied that she knew Mravic was going to kill her husband. There is no very material difference between the statements of Mravic and defendant as to the movements of the parties on the day of the killing, or as to what transpired, except as has already been noted.

The interpreter who acted at the examination before the chief of police testified that defendant told him after Mravic concluded his statement that she had nothing to say against it; that she had no objection to it, but that everything he said was true. This alleged statement, made to the interpreter, was not taken down by the reporter.

The interpreter who acted at the coroner's inquest might have understood the Croatian language very well; but the record indicates that the use of English came awkwardly to him. He testified that defendant sat close to Mravic, so that she could hear all he said, and that she did nothing to indicate that she disapproved of his statement. He also testified that he asked her if she heard what Mravic said, and that she replied in the affirmative. He then detailed a conversation which took place between them, and which may be fairly said to mean that he asked her whether Mravic's confession was true, and that she replied that it was all right.

Edward T. Fairchild and Lenicheck, Robinson, Fairchild & Boesel, for plaintiff in error.

Levi H. Bancroft, Atty. Gen., Russell Jackson, Deputy Atty. Gen., Winfred C. Zabel, Dist. Atty., of Milwaukee county, and Andrew Gilbertson, Asst. Dist. Atty. of Milwaukee county, for the State.

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

The defendant moved for a separate trial, which motion was denied. At the close of the state's evidence, the defendant asked that the court instruct the jury that the statements made by Mravic before the chief of police and the coroner were binding on him only. This request was denied. The defendant later asked that the jury be instructed that the confessions of Mravic were binding on him only, unless they were satisfied, beyond a reasonable doubt, that the defendantNovkovic assented thereto, and that, unless they were so satisfied, they should dismiss the confessions from their minds as to her and return a verdict of not guilty, unless they were satisfied by other evidence, beyond a reasonable doubt, that she was guilty. The court instructed the jury that the statements of Mravic were not binding on his codefendant, and could not “be considered against her, unless you are satisfied, beyond a reasonable doubt, that said Marie Novkovic assented to such statements actually or impliedly.”

The errors assigned and argued are that the court was wrong (1) in refusing to grant Mrs. Novkovic a separate trial; (2) in permitting the jury to consider the confessions of Mravic as evidence against her; (3) in charging the jury; (4) in excluding competent evidence; (5) in not discharging the defendant, Novkovic; and (6) in refusing a new trial, and in denying said defendant's motion in arrest of judgment.

[1] The reasons assigned for granting a separate trial to Mrs. Novkovic were set forth in an affidavit which she filed in support of the motion, and were two in number: First, because she desired to call her codefendant as a witness in her behalf; and, second, because the confessions of Mravic, which were competent evidence against him, were not so as against her, and would be highly prejudicial to her, if permitted to go before the jury which tried her.

The right of two or more defendants jointly informed against to have separate trials is discussed in Emery v. State, 101 Wis. 627, 638, 78 N. W. 145, 148. It is there said: “Where persons are so circumstanced as to be properly triable together for a criminal offense, separate trials are not demandable as of right, except it be shown that a joint trial will so clearly be seriously prejudicial to one of the parties as to require a separate trial as to him to prevent injustice. The refusing or granting of such a motion is wholly within the discretion of the trial court; and its exercise, as in other cases of the exercise of discretionary power, cannot be successfully questioned, except for a plain abuse of it. That was the rule at common law, and, though it has been changed in many jurisdictions by statute, it has not been changed in this state.”

In discussing the right of one defendant to have the benefit of the testimony of the wife of a codefendant, the court further said: “It may well be said, when the testimony of the wife of one defendant is material and reasonably necessary to the...