Ryan v. State

• Decision Date: 15 November 1892
• Parties: RYAN v. STATE.
• Court: Wisconsin Supreme Court

83 Wis. 486

53 N.W. 836

RYAN

v.STATE.

Supreme Court of Wisconsin.

Nov. 15, 1892.

Error to circuit court, Ashland county; J. K. PARISH, Judge.

Charles Ryan was convicted of burglary, and brings error. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

On May 12, 1891, an information in due form was filed in the municipal court of Ashland county by the district attorney against Charles Ryan, the plaintiff in error, and two others, charging them jointly with having committed the crime of burglary, by unlawfully and feloniously breaking and entering the dwelling house of one Edward Welsh, in that county, in the nighttime of March 13, 1891, with intent then and there to commit the crime of larceny. On the same day Ryan was arraigned, and pleaded not guilty to the charge in the information, and on his affidavit of poverty the court appointed G. H. McCloud, Esq., an attorney of the court, to defend him. Ryan also filed his affidavit of the prejudice of the judge of the municipal court, and thereby obtained a change of the place of trial to the circuit court of Ashland county. Such change secured Ryan a separate trial. After the case reached the circuit court, Rublee A. Cole, Esq., an attorney of that court, appeared therein in behalf of Ryan, and filed the affidavit of the latter that he was too poor to employ counsel, and praying that Mr. Cole be appointed to defend him. Because Mr. McCloud had been appointed to do so by the municipal court, the circuit court refused to appoint Mr. Cole, and made an order reappointing Mr. McCloud for that purpose, limiting such appointment to that court and term. From that time, however, Mr. Cole participated in the defense of Ryan as his counsel, and appears in this court as such. When the cause came on for trial, a plea in abatement on behalf of Ryan was interposed to the information, based upon the allegations that the original complaint was made before the clerk of the municipal court, and the warrant for the arrest of Ryan and his codefendants was signed and issued by such clerk. Because of such procedure it is claimed that there was no legal preliminary examination of the accused. The court overruled the plea because it was not interposed until after Ryan had been duly arraigned in the municipal court, and had pleaded to the merits. The trial of Ryan resulted in his conviction. The court overruled his motions in arrest of judgment, and for a new trial, adjudged him guilty of the offense charged, and sentenced him to a term of imprisonment in the state prison. He has sued out a writ of error to obtain a review and reversal of the judgment.

Geo. H. McCloud, ( Rublee A. Cole, of counsel,) for plaintiff in error.

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

LYON, C. J., ( after stating the facts.)

I. The plea in abatement, based on the alleged want of a legal preliminary examination of the plaintiff in error, was properly overruled, for the reason given by the trial court. In the municipal court he pleaded to the information “Not guilty.” When he interposed his plea in abatement in the circuit court the plea of not guilty (which, of course, was a plea to the merits) was in full force, no leave having been granted or asked to withdraw it. The statute provides that “no failure or omission of such preliminary examination shall in any case invalidate any information in any court, unless the defendant shall take advantage of such failure or omission before pleading to the merits by a plea in abatement.” Sanb. & B. Ann. St. § 4654. Such plea in abatement might also have been properly overruled on the merits. It appears from the record that the original complaint against Ryan, and those prosecuted with him, was made to the municipal court; that process for their arrest was issued by that court; and that their examination on such complaint was had before the judge of that court. In the statute creating the municipal court of Ashland county it is provided that the clerk of such court “may examine on oath all persons applying for warrants, reduce such examinations to writing, and file the same, and issue all warrants and other process from said court.” Laws 1889, c. 94, § 5. These acts of the clerk are all under the supervision of the judge of the court, and subject to his control. In a certain sense they are the acts of the judge or the court. We perceive no valid constitutional or other objection to the above statute; hence we think the fact that the clerk administered the oath to the complainant, and signed the jurat to the complaint, and that he signed and issued the warrant, under the seal of the court, for the arrest of the accused, does not render invalid their subsequent examination before the judge of the municipal court, who held them for trial. It is stated in the bill of exceptions that, after the plea in abatement was overruled, Ryan was again arraigned, and again pleaded not guilty. This second arraignment and plea were entirely superfluous, and no effect whatever can be given thereto.

II. It appears by the bill of exceptions that when the district attorney was opening the case for the prosecution to the jury the court suggested to him “that he explain to the jury what a statutory ‘breaking’ is, and what ‘burglary’ is, in the eye of the law,” and that the district attorney thereupon “defined the meaning of those terms according to the statute.” The remarks of the district attorney in response to the suggestion of the court are not preserved in the record. It further appears that before any testimony was introduced, the court, in somewhat extended remarks, which are preserved in the bill of exceptions, admonished the jury of their duties, and of the rights of persons on trial charged with crime. The above procedure is assigned for error, not because either the district attorney or judge laid down any bad law, or said anything improper, but because the same was not in the course of orderly judicial procedure in criminal trials. We are aware of no law which prohibits the trial court, in a criminal case, from asking the district attorney, in his opening, to define to the jury the crime under consideration. And if, as in this case, he defines it correctly, we think it is not error. Neither do we think it error if the court sees fit, at the commencement of the trial, to instruct the jury of their duties, and of the fundamental rights of the person to be tried, provided he correctly states such duties and rights, as we think he did in this case.

III. Numerous exceptions in behalf of the plaintiff in error were taken on the trial to the rulings of the court on objections to the admission of testimony. Some of them are of no importance, and will not be further referred to. Others will now be briefly noticed.

1. The court allowed a female witness, named Liston, in whose possession was found a dress stolen from Welsh's house when the burglary charged in the information was committed, to describe the man of whom she testified she purchased such dress, and what the man said to her when she purchased it. The prosecution claims that the man from whom she received the dress was Ryan. The description the witness gave of the person in question was competent, in connection with the other testimony in the case, to go to the jury on the question whether such...