Oborn v. State

• Decision Date: 24 May 1910
• Citation: 126 N.W. 737,143 Wis. 249
• Parties: OBORN v. STATE.
• Court: Wisconsin Supreme Court

143 Wis. 249

126 N.W. 737

OBORN

v.STATE.

Supreme Court of Wisconsin.

May 24, 1910.

Syllabus by the Judge.

The constitutional guaranty of trial by jury and the statute as well entitle one, charged with having committed a criminal offense, to a trial by a jury of 12 men selected according to law, from the county where the crime is claimed to have been committed, and to have all issues, including that of insanity, tried in such county and by the one jury.

The right to a change of venue in a criminal case, depends upon statute and can only be claimed in the manner and upon the ground provided.

The rule that the right to a change of venue in a criminal case is purely statutory, does not exclude the idea that a change by consent is proper.

An accused person in a criminal case is competent to waive irregularities and rights, whether constitutional or statutory, very much the same as a party may in a civil action.

One accused of crime is competent to waive any irregularity or right, constitutional or statutory, except in a capital case the right of trial by a jury of 12 men, and that extends to waiver of the right of trial by a jury of 12 men competent to act as jurors.

The right to a jury trial and that to a trial in the county of the offense and the one to have all the issues tried before a single jury, are subject to waiver by the accused.

If one is put in jeopardy as regards a criminal charge, the jeopardy is subject to supersession where the ends of justice require the jury to be discharged and another jury to be impaneled to try the case.

In case the trial judge, in the progress of a trial, because of any emergency, concludes that it is imperatively necessary for him to suspend the trial indefinitely, and especially if counsel for the accused concurs in that view without protest by the accused brought to the attention of the court, and in such situation the jury is discharged, leaving the trial to be taken up again before another jury, the jeopardy created by the partial trial is thereby wholly superseded.

In case of an accused person, after having been put in jeopardy, taking or consenting to any proceeding rendering necessary a new or additional trial in order to fully conclude the case, he cannot in such further trial successfully claim immunity on the ground of former jeopardy created by the first proceeding.

Counsel who call a witness to testify within the field of opinion evidence, may frame his question upon such hypothesis as he thinks is reasonably warranted by the evidence, aiming to reasonably cover an entire situation, so warranted, subject to the opinion of the court as to competency.

On the question of competency, the interrogatory to the expert, is not to be condemned because not warranted from the viewpoint of adverse counsel, since each party may take and have presented to the jury any reasonable position, in the judgment of the court, by propounding to witnesses such party's own hypothesis leaving the weight of the answer to the jury and to turn, in part at least, on whether such hypothesis presents the true state of the case.

The decision of the trial court on the question of competency, is not to be disturbed on appeal unless it not only appears clearly wrong but that, had the error not occurred, the result of the trial might, within reasonable probabilities, have been materially more favorable to the complaining party.

The constitutional guaranty of the right of the accused person in a criminal prosecution to meet the witnesses face to face, does not extend to mere official authenticators of official documents offered in evidence on the subject of competency of a person produced as a witness to testify.

A judgment of divorce, so far as in rem, is conclusive on the whole world as to the status of the parties being, from that time, single as to each other, but does not settle the status of their prior relations so as to render them, as to the whole world, valid regardless of whether they were so in fact or not.

The rule precluding a husband or wife from being a witness for or against each other, or from disclosing confidential communications, contemplates the existence of a valid marriage.

Whether evidence of conduct of a person after the fact, in a criminal prosecution, is admissible on the question of whether such person was legally sane at the time of such fact, depends upon whether such conduct bears such relation to such person's former condition of mind as, in reason, to be worthy of consideration in respect thereto.

If the question of fact last suggested is decided in favor of admissibility, then the, rather miscalled, discretionary power, which is, really under the circumstances, power to judge as to the fact, is exhausted and there is no discretion as to whether to allow or not to allow the evidence; it is admissible as matter of right.

The term “insanity,” in the law, means such an abnormal condition of the mind, from any cause, as to render the afflicted one incapable of distinguishing between right and wrong in the given instance and so rendering him unconscious of the punishable character of his act.

A person is not immune from punishment for a wrongful act if he has, at the time of perpetrating it, capacity to distinguish between right and wrong in respect thereto--if he has such capacity and is conscious of the wrongfulness of his conduct.

The law does not recognize a form of insanity in which there exists capacity to distinguish between right and wrong and consciousness of the wrongful nature of the particular act, without power to abstain from it; i. e., in law he who can distinguish between right and wrong must, at his peril, choose rightly between them.

If the court instructs the jury in a criminal case that they should acquit the defendant unless they become satisfied by the evidence beyond every reasonable doubt that he is guilty, that sufficiently informs them that each juror should pass his own judgment on the evidence and not agree with his fellows to a conviction unless he is convinced, with the certainty mentioned, that the accused is guilty.

Proof of epilepsy does not, necessarily, directly establish insanity, as epilepsy is not, as a matter of fact or law, insanity, though evidence of an epileptic condition may bear, circumstantially, on the mental condition of the afflicted person to the extent of establishing insanity.

Whether the accused, in any given case, was afflicted with epilepsy, and if so whether the affliction was a mental disease or had impaired his mind, and if so whether sufficiently to render him unable to appreciate between right and wrong, are matters of fact to be established by evidence.

If one points a loaded gun and discharges it in a direction other than at a person who is in fact killed by the bullet reaching his person, glancing from another object, that one is yet guilty of a homicidal offense, if he knew, or ought reasonably to have known, that his conduct was dangerous to human life and yet he acted regardless thereof.

It is not improper to say, according to the facts, in instructing a jury, that experts have given their opinions as to the sanity of the accused, leaving it to the jury to find the truth of the matter without being necessarily bound by the opinion evidence.

After a decision against the accused on a special issue as to insanity, evidence of his mental condition is only admissible on the general issue as bearing on the grade of the offense.

It is improper, in the trial of a capital case, to allow communications, verbal or written, between jurors and outside parties, unless strictly necessary and with knowledge of counsel on both sides.

Careful isolation of the jury, in a capital case, from all outside influence, so as to avoid any suspicion of the result being characterized by any improper influence, is advised.

Prejudice to a complaining party on appeal is not presumed from mere occurrence of error. The error cannot be regarded as harmful, so as to require a reversal unless, within reasonable probabilities, had the error not occurred the result might have been materially more favorable to the one complaining of it.

Error to Circuit Court, Winnebago County; George W. Burnell, Judge.

Dell Oborn was convicted of murder in the second degree, and brings error. Affirmed.

The plaintiff in error was informed against as having, on the 19th day of May, A. D. 1908, at the town of Amberg in Marinette county, Wis., feloniously and with premeditated design, killed one Louis Tobaltz. Such proceedings were duly had that he was placed on trial on a plea of not guilty and a special plea of insanity. A verdict was duly rendered on the special issue in favor of the state. Before there was opportunity to proceed with the trial on the general issue, the circuit judge was constrained to believe it was necessary for him to suspend the trial and discharge the jury because of the serious illness of his wife at the family home in Oshkosh, Winnebago county. Counsel on both sides recognizing that such emergency existed, entered into a stipulation, as follows:

“It is hereby expressly stipulated that the jury now impaneled which has tried the issue of insanity and now is in the custody of the officer shall be discharged from further consideration of the case, that the place of trial and venue of the action be changed from Marinette county to Winnebago county, Wis., the defendant expressly requesting such change and waiving any irregularity in not proceeding with the issue of not guilty at this time and place, reserving however the right to move the court to set aside the verdict and grant a new trial upon the insanity issue heretofore tried in this county and at this term, that the argument on said matter be taken up before the Honorable Geo. W. Burnell, the presiding judge, at such time and place as he may direct. Further stipulated that the state may have the privilege of introducing the testimony of such witnesses as given upon...