Pollack v. State

• Decision Date: 06 March 1934
• Citation: 215 Wis. 200,253 N.W. 560
• Parties: POLLACK ET AL. v. STATE.
• Court: Wisconsin Supreme Court

215 Wis. 200

253 N.W. 560

POLLACK ET AL.

v.STATE.^a1

Supreme Court of Wisconsin.

March 6, 1934.

Writ of Error to the Municipal Court of Milwaukee County; George A. Shaughnessy, Municipal Judge.

Edward Pollack, Steve Drinka, and Adolph Peters were convicted of first degree murder, and defendants Pollack and Drinka bring error.––[By Editorial Staff.]

Affirmed.

FRITZ and WICKHEM, JJ., dissenting.

The plaintiffs in error, hereinafter referred to as the defendants, were charged together with one Adolph Peters with having killed and murdered Richard Zingler, a police officer, in the city of Milwaukee, on February 6, 1933. On May 19, 1933, upon a verdict of the jury rendered at the trial, they were found guilty of murder in the first degree, and were sentenced to life imprisonment in the state's prison at Waupun. They sued out a writ of error to review the record in the case.

In the light of the verdict of the jury finding the defendants guilty, the following is a brief statement of the facts: Adolph Peters, sometimes referred to in the record as “Otsy,” was an unmarried man twenty–two years of age, and resided with his married brother at 456 North Fortieth street, in the city of Milwaukee. Edward Pollack was an unmarried man twenty years of age, living with his parents at 418 North Thirty–Ninth street, in the city of Milwaukee. Steve Drinka was a single man twenty–two years of age, living with his parents at 442 North Thirty–Ninth street, Milwaukee. On the evening of Monday, February 6, 1933, Drinka went to the home of Pollack, and the two then went to the home of Peters, where they spent some time playing cards. About fifteen minutes after 9 in the evening, the three left the Peters home, and, pursuant to a plan formed, went to the place of Otto Schweizer on Vliet street just off of Thirty–Eighth street. The defendants at first claimed that the three went to the Schweizer place for the purpose of giving Schweizer a beating for the reason that Pollack was offended at some remark Schweizer had made some time ago and they were to punish him. Subsequently, the defendants admitted that they went there for the purpose of robbing Schweizer under the belief that he had money upon his person or secreted in the basement. Pollack had procured two revolvers from a person whose name he refused to disclose. He gave one to Peters and one to Drinka before they left the Peters home. Both revolvers were loaded. Drinka had prepared some masks from socks. When they first approached the Schweizer place, there was a light in the basement. The defendants then went to a restaurant in the neighborhood, and shortly after 11 o'clock, the light having disappeared, the three then went to the rear entrance of the Schweizer building, down the steps into the basement, and went to the laundry to wait for Schweizer. The south or street end of the basement was divided into five parts. On the west was a boiler room extending north and south the entire length of the building. There were three storage rooms approximately 37 feet long, and on the east side was a laundry 10' 4? wide and about 40 feet long extending north and south. To the south of the three storage rooms was the room in which was situated the apparatus for heating and storing hot water. Schweizer came in, turned on the lights, and fixed the fires. As he returned from the boiler room to go out, Peters pointed a gun at him and commanded him to put up his hands. Schweizer started to yell when he was struck, eventually thrown to the floor and bound. Some effort was made to gag him, but apparently it was not successful, because he continued to yell.

What the defendants did during the next minute or two is not fully disclosed by the testimony. While the defendants were in the room with Schweizer, and just as they had finished tying him up, a step was heard on the rear stairs which led to the basement. The defendant Pollack turned out the light; the switch being near the boiler room. Peters took a position near a point where the steps, down which some person was coming, reached the basement. Subsequent events show that the person who entered the basement was Policeman Zingler. Upon his deathbed he made a statement from which it appears that he was forty–two years of age; that he discovered the presence of burglars in the Schweizer basement at 3816 West Vliet street; that he went to the rear of the building and walked down to the basement. Peters stepped out suddenly and ordered him to “stick 'em up.” Zingler made a grab for the gun, and Peters shot him in the left side below the heart. He died from the wound about twenty–six hours later. Zingler did not fall, but attempted to pursue Peters, and finally fired a shot at him which was ineffective. Zingler saw the shadow of another person in the boiler room, but he did not know what became of him. Zingler made some effort to describe his assailant.

From Schweizer's testimony, it appears that Schweizer was thrown to the floor by some one of the three, was struck on the head with some weapon, was hit in the face by a fist, and some one bumped his head on the cement floor. Schweizer heard some one “taking the snow off,” the light was thrown out, heard the three men whisper, one went near the steps. After the shot was fired, two of the men, which subsequent events show to have been the defendants Drinka and Pollack, ran to the front or south end of the basement and escaped through a basement window, the sill of which was eight feet above the floor. The three men met within a few blocks, went to the railroad tracks, on the way agreed upon a story they would tell to establish an alibi for Peters, hopped a freight train, rode to a bridge near Wisconsin avenue and went home according to their statement. The three participants were subsequently arrested, and, after questioning by the police officers, made confessions in which they admitted many of the facts already stated. They were arraigned upon an information charging the three with murder in the first degree in the killing of Zingler and upon an information charging assault with intent to rob Schweizer under section 340.39. Upon arraignment, the defendant Drinka pleaded guilty to murder in the third degree, and pleaded guilty to the information charging assault with intent to rob. The court refused to accept the plea of murder in the third degree and entered a plea of not guilty as to Steve Drinka. Peters pleaded not guilty to murder in the first degree and pleaded guilty to the information charging assault with intent to rob Schweizer. The defendant Pollack pleaded not guilty to the information charging murder in the first degree and not guilty to the information charging assault with intent to rob. The charge of murder in the first degree was tried, and the three defendants were found guilty of murder in the first degree. After the trial, Pollack changed his plea charging him with assault with intent to rob from not guilty to guilty. Sentence and judgment were entered upon the verdict and the pleas.

Rubin & Zabel and Joseph A. Padway, all of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for plaintiffs in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Wm. A. Zabel, Dist. Atty., and Herman A. Mosher, Asst. Dist. Atty., both of Milwaukee, for the State.

ROSENBERRY, Chief Justice.

[1][2][3] Defendants assign as error the refusal of the trial court to grant separate trials, and allege such refusal was an abuse of discretion. The defendants conspired with Peters; they, pursuant to the conspiracy with Peters, acted jointly in the commission of the crime to assault with intent to rob. To a point in time at least to within a few seconds of the time when Police Officer Zingler was killed, they continued to act in concert. They therefore should not complain if upon consideration the court denies them separate trials. Ordinarily, whether or not defendants shall be tried separately lies within the sound discretion of the trial court. Mayfield v. State, 142 Wis. 661, 126 N. W. 15;Novkovic v. State, 149 Wis. 665, 135 N. W. 465. It is not the tactical position taken by counsel for the separate defendants that determines whether or not a separate trial shall be granted. Smith v. State, 195 Wis. 555, 218 N. W. 822. The defenses in this case were not antagonistic. The showing made in Emery v. State, 101 Wis. 627, 78 N. W. 145, upon a motion for a separate trial was much more persuasive than is the present case, but a denial of the motion was held not to be an abuse of discretion.

[4][5] It is next urged that the trial court erred in denying defendants' request for additional peremptory challenges under the provisions of section 357.03, Wis. stats. No authority is cited to sustain the position of counsel, and we find none. There is no circumstance in the record which indicates any abuse of discretion on the part of the trial court. A defendant is entitled to a jury which will insure him a fair and impartial trial but not to an unlimited choice in an attempt to secure a jury which will acquit him. There is nothing in the record which indicates either in the choice of the jury or in its subsequent conduct that the jury was anything but fair and impartial.

3. The defendants assign as error the refusal of the trial court to submit to the jury the question of whether or not the defendants might be separately found guilty of different degrees of the offense charged. The court instructed the jury as follows:

“I further instruct you that if three persons conspire to commit a felony and in the prosecution of that common design one of them commits murder, it is murder as to all who enter into or take part in the execution of the common object and design for which they combine together. In other words, in this case, if all of the defendants conspired to commit a felony, and if in the prosecution of that common design one of them committed an unlawful homicide, all three...