Perrin v. State

• Citation: 50 N.W. 516,81 Wis. 135
• Parties: PERRIN v. STATE.
• Decision Date: 17 November 1891
• Court: United States State Supreme Court of Wisconsin

81 Wis. 135

50 N.W. 516

PERRIN

v.STATE.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Error to municipal court of Ashland; J. K. PARISH, Judge. Affirmed.

Information against Phelps Perrin for larceny. Verdict and judgment of conviction. Defendant brings error.G. W. Cate and Rublee A. Cole, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State.

WINSLOW, J.

The plaintiff was convicted in the municipal court of Ashland county of larceny of about $39,000 from the custody of the Iron Exchange Bank of Hurley, an institution incorporated under the state laws, of which bank plaintiff in error was book-keeper. The crime is charged to have been committed September 20, 1889, and is the same as that charged in the case of Baker v. State, 50 N. W. Rep. 518, (decided herewith.) It was not claimed by the state that Perrin did the manual act of stealing, but that it was done by others, probably Baker, by virtue of a conspiracy with Perrin, who had the keys of the bank, and knew the combination of the vault lock. Although jointly informed against originally, Baker and Perrin obtained separate trials by means of a change of venue taken by Baker. After Baker's trial in the circuit court for Ashland county, Perrin was tried and convicted in the municipal court of said county, and brings a writ of error to reverse the judgment rendered upon such conviction.

Numerous alleged errors are assigned. Some of them are identical with errors alleged and disposed of adversely to the views of the plaintiff in error in the Baker Case. These will not be discussed here again.

It appears that, upon the eve of the trial the plaintiff in error made a motion for change of venue on account of prejudice of the people, based upon numerous affidavits, which motion was opposed by the state by nearly an equal number of counter-affidavits. The motion was overruled, and immediately thereafter the plaintiff in error “asked the privilege of the court to file additional affidavits, showing the prejudice of the people of said county against the defendant. The court denied said motion, and the defendant excepted.” We see no error in either of these rulings. Certainly no error can be predicated on the refusal to change the venue, as there seems to have been substantially as strong a showing on the part of the state as on the part of the defendant; and it is to be noticed that the defendant did not, apparently, renew the motion or make a new motion for change of venue, but simply “asked the privilege of filing additional affidavits,” without, apparently, giving any reason or showing any circumstances to excuse the failure to file such additional affidavits with his original motion. It seems like an attempt to make motions by piecemeal, and, while we do not hold that a motion for change of venue may not be renewed upon a new showing, we see no error in the refusal to allow a motion which has been passed upon to be bolstered up by additional affidavits, without any showing excusing the failure to file such affidavits at the proper time.

After these motions were disposed of, the plaintiff in error filed his affidavit alleging prejudice on the part of the municipal judge, Hon. L. A. CALKINS, and thereupon Hon. J. K. PARISH, circuit judge of the fifteenth circuit, was called in by the municipal judge to try the case in lieu of a change of venue. The plaintiff in error then filed his affidavit alleging prejudice on the part of Judge PARISH, and prayed a change of venue, which motion was denied, and the trial proceeded before Judge PARISH. Both of these rulings are alleged as error,--the first because it is claimed that Judge PARISH was not the judge of an adjoining circuit; and the second, because, there having been no change of venue, the plaintiff in error was deprived of his right to one change of venue which the statute gives him. We have decided in the Baker Case that the fifteenth circuit was an adjoining circuit, within the meaning of the law, and we shall not review the point here.

The second point presents more difficulty. It was contended that the calling in of another judge is not a change of venue, and consequently that the plaintiff in error, having had no change of venue, was not affected by section 4680, Rev. St.,¹ which provides that no more than one change of venue shall be awarded in any cause. We cannot indorse this view of the law. Although the calling in of another judge is not strictly a change of venue,...