Okershauser v. State

• Decision Date: 05 June 1908
• Citation: 116 N.W. 769,136 Wis. 111
• Parties: OKERSHAUSER v. STATE.
• Court: Wisconsin Supreme Court

136 Wis. 111

116 N.W. 769

OKERSHAUSER

v.STATE.

Supreme Court of Wisconsin.

June 5, 1908.

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

William C. Okershauser was convicted of crime, and he brings error. Affirmed.

Among other references upon the part of the plaintiff in error were the following: Jennings v. State (Wis.) 114 N. W. 492;State v. Lockwood, 43 Wis. 403;In re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. 285;Norval v. Rice, 2 Wis. 22;May v. Milwaukee & Miss. Ry. Co., 3 Wis. 219;Bennet v. State, 24 Wis. 57;Sutton v. Fox, 55 Wis. 531, 13 N. W. 477, 42 Am. Rep. 744.

Among other references upon the part of the defendant in error were the following: State v. Vogel, 22 Wis. 471,Hogan v. State, 36 Wis. 226;Bonneville v. State, 53 Wis. 680, 11 N. W. 427;Flynn v. State, 97 Wis. 44, 72 N. W. 373;In re Roszcynialla, 99 Wis. 534, 75 N. W. 167;Emery v. State, 101 Wis. 627, 78 N. W. 145;Cornell v. State, 104 Wis. 527, 80 N. W. 745;Schwantes v. State, 127 Wis. 160, 106 N. W. 237,Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432;Brewer v. Jacobs (C. C.) 22 Fed. 217; the Case of a Juryman, 12 East's Repts. 230.R. S. Witte (Lyman G. Wheeler, of counsel), for plaintiff in error.

F. L. Gilbert, Atty. Gen., Francis E. McGovern, Dist. Atty., and A. C. Backus, Asst. Dist. Atty., for the State.

TIMLIN, J.

The plaintiff in error was convicted in the municipal court for Milwaukee county and sentenced to imprisonment in the house of correction for one year after having been found guilty by the verdict of a jury.

The only point argued in the brief of plaintiff in error is that Ignatz Gorski, one of the jurymen, was not of sufficient intelligence to qualify him as a juror, and did not have sufficient knowledge of the English language to understand the nature of the evidence or any of the arguments or proceedings in the case. It appeared that, when the jury was called, this juror was examined with reference to his qualifications by the assistant district attorney and by the attorney for the plaintiff in error. He testified that he had no bias or prejudice for or against the prosecution of the class of cases in question, no interest in the outcome of the case, no bias or prejudice for or against the defendant, and had formed or expressed no opinion as to his guilt or innocence. He understood the defendant in a criminal case is presumed innocent until he is found guilty, that the burden of proof was on the state, and there was nothing to prevent him giving the defendant the presumption of innocence. These answers were made in monosyllables. Several more complicated questions were not answered. Neither counsel pressed for an answer but the juror did testify as follows: “Question by counsel for plaintiff in error: Do you understand the English language clearly so that you will understand all the evidence that is introduced here? A. No.” After this several other questions remained unanswered, but the juror was accepted without challenge by the state or by the plaintiff in error. After his conviction the plaintiff in error moved for a new trial upon affidavit averring the foregoing disqualifications of the juror Gorski, and that plaintiff in error did not know of such disqualifications prior to the rendition of the verdict in the action. The court denied the motion for a new trial.

There is some evidence tending to show that the juror had some meager qualifications, but we will assume for the purpose of this decision that he was wholly disqualified by reason of his inadequate knowledge of the English language. The examination of the juror shows that the plaintiff in error had notice of this disqualification, and failed to challenge the juror for this or any other cause. A party to a lawsuit, civil or criminal, is in court for the purpose of trying his cause openly and fairly, and is not justified in lying in wait for errors on the part of the trial court relating to matters which he fails to bring to the attention of that court. It has long been the law of this state that objection to a juror on the ground that the latter was not a citizen of...