Richards v. State
| Decision Date | 23 February 1892 |
| Parties | RICHARDS v. STATE. |
| Court | Wisconsin Supreme Court |
Error to circuit court, Vernon county; A. W. NEWMAN, Judge.
John T. Richards was convicted of murder in the first degree, and brings error. Affirmed.
The other facts fully appear in the following statement by LYON, C. J.:
An information in due form was filed in the circuit court of Monroe county by the district attorney of that county, charging that on February 9, 1889, at said county, John T. Richards did feloniously kill and murder one John G. Mooney by stabbing him with a knife, with a premeditated design by Richards to effect Mooney's death. The place of trial was changed to Vernon county. The accused was tried on the information in the circuit court of Vernon county, in October, 1890, and convicted of murder in the first degree, as charged in the information. The court denied a motion for a new trial, and sentenced the accused to imprisonment in the state–prison for life. He has sued out a writ of error from this court to obtain a review and reversal of the judgment. The case is further stated in the opinion, in connection with the statement and discussion of the several errors assigned by the plaintiff in error.Morrow & Masters and Bleekman & Bloomingdale, for plaintiff in error.
D. F. Jones, J L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for the State.
LYON, C. J., ( after stating the facts.)
I. The original complaint against plaintiff in error for the murder of Mooney was made to a justice of the peace by Lucinda J. Richards, the wife of plaintiff in error, and mother of Mooney, the deceased. A warrant was issued by the justice on such complaint for the arrest of the accused, and he was afterwards arrested thereon, and brought before the justice. He waived an examination, and was held for trial in the circuit court. Thereupon the district attorney filed the above–mentioned information, and the accused was arraigned in the circuit court of Monroe county, and pleaded “not guilty” to the charge in the information. When the case was called for trial in the Vernon county circuit court, to which it had been removed, the accused asked leave to withdraw his plea of “not guilty,” and to interpose a plea in abatement of the information, setting forth that such complaint was made by his wife, and hence that his arrest and examination were null and void, and the information filed against him unauthorized by law. The court refused to grant such leave, and the trial of the issue made by the information and the plea of “not guilty,” was had, and the accused was convicted of the offense charged. Such refusal is the first error assigned. It is provided by statute that no failure or omission of a preliminary examination shall in any case invalidate any information in any court unless the defendant shall take advantage of such failure or omission by a plea in abatement before pleading to the merits; Rev. St. § 4654. Assuming (but not deciding) that there was a failure or omission of a legal examination, the accused waived the same by pleading to the merits before he offered or attempted to interpose the plea in abatement. His application, after such waiver, for leave to withdraw his plea in bar, and to interpose such plea in abatement, was therefore addressed to the sound discretion of the circuit court, and the refusal of the court to grant such leave cannot properly be held erroneous unless there was a clear abuse of discretion involved in the ruling. Considering that the application was delayed until the cause was called for trial and the prosecution had been put to the expense of preparing for trial, and considering also that, had the application been granted, and had judgment gone for the accused on the dilatory plea, it would not have barred––presumably would not have prevented –– the institution of another prosecution for the same crime, we are unable to say that the denial of the application was an abuse of discretion. On the contrary, under the circumstances of the case, we think it was a very proper exercise of its discretion by the circuit court.
II. Under chapter 354, Laws 1887, (Ann. St. § 752 a,) the court appointed Mr. Graves, an attorney at law, to assist the district attorney in the prosecution, and Mr. Graves did so assist on the trial. The court also permitted Mr. Button, the law partner of the district attorney, to assist in the prosecution. Mr. Button did so at the request of the district attorney, and without fee or compensation therefor. This was done against the objection of the accused, and error is assigned because Mr. Button was allowed to participate in the trial on the part of the prosecution. Chapter 223, Laws 1885, (Sanb. & B. Ann. St. § 4504,) provides that “the law partner of any district attorney may, at the request of the district attorney, without fee or compensation therefor, assist the district attorney in the prosecution of any case on the part of the state.” The point of the objection is that it was not competent for the court to appoint Mr. Graves to assist in the prosecution, and at the same time allow the partner of the district attorney also to assist therein. We find no such restriction on the power of the court in the statute. Indeed, it is not entirely certain that the district attorney is not entitled, as matter of right, to the assistance of his partner; the services being rendered without compensation, and such partner being an attorney of the court.
III. The accused stabbed Mooney with a knife, in the house of the former, at about 11 o'clock on Friday evening, February 9th, and Mooney died of the wound the next Monday afternoon. The accused was somewhat intoxicated when he committed the deed, but knew what he was about at the time and during the remainder of the night. During the night Mrs. Richards, in the presence of the accused and several other persons, made statements of the circumstances of the stabbing, which, if true, showed that her husband was a murderer if Mooney should afterwards die. The statements were made in the house of the accused, in two rooms, each of moderate size, and under circumstances that the accused might have heard them. All the other persons present heard the statements, and they had no better opportunity to hear than had the accused. The latter did not deny the truth of such statements when the same were made. Proof of them was admitted, under objection, on the ground that, being unchallenged by the accused when made, they became his admissions by acquiescence, and that it was immaterial that the wife was not a competent witness in the case. The rule is fairly to be deduced from the authorities cited to the point by the respective counsel that inculpatory statements, made in the presence and hearing of one accused of crime, which he, having opportunity to do so, does not deny, and the truth or falsity of which is within his personal knowledge, are admissions of the accused by acquiescence, and, as such, admissible in evidence, although such statements were made by a person not competent to testify in the case. The rule as stated is not seriously questioned by the learned counsel of the accused, but they maintain it does not sufficiently appear that the accused heard such statements of his wife, and therefore the rule is not...
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