Schultz v. State

• Decision Date: 15 October 1907
• Citation: 133 Wis. 215,113 N.W. 428
• Parties: SCHULTZ v. STATE.
• Court: Wisconsin Supreme Court

133 Wis. 215

113 N.W. 428

SCHULTZ

v.STATE.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Error to Municipal Court of Milwaukee; A. J. Vinje, Judge.

Fred C. Schultz was convicted of offering a bribe to a member of the board of supervisors to influence his official action on a proposition before such board, and he brings error. Reversed and remanded for a new trial.Churchill, Bennett & Churchill and Lyman G. Wheeler (Charles Quarles, of counsel), for plaintiff in error.

Frank L. Gilbert, Atty. Gen., Francis E. McGovern, Dist. Atty., and W. A. Hayes, Asst. Dist. Atty., for the State.

WINSLOW, J.

The plaintiff in error (hereinafter called the defendant) was indicted and convicted of offering a bribe January 8, 1901, to one Edward F. Strauss, a member of the county board of Milwaukee county, to influence his official actions on a proposition before such board to sell a parcel of real estate on which the county morgue and poor office were then situated to the Milwaukee Electric Railway & Light Company, and he prosecutes his writ of error to reverse the judgment. The errors claimed will be taken up in their order.

1. A plea in abatement was first filed by the defendant to the effect that the jury commissioners of Milwaukee county did not themselves alone select the list of names from which the grand jury which indicted the defendant was drawn, but allowed one A. A. Wieber (who it appears was clerk of the circuit court) to participate in their deliberations, propose names, and advise and assist in the final determination. The issue arising on this plea and the reply thereto was tried by the court, and the testimony showed without substantial dispute that Mr. Weber, at the request of the commissioners, acted as their clerk, and was present at their meetings and kept its records and lists; that he sometimes suggested names at the request of the commissioners and participated in the discussion as to the fitness of persons whose names were under consideration, but that the final decision was always made by the commissioners themselves unanimously and without the participation of Mr. Wieber. Upon this state of facts, the plea in abatement was overruled, as was also a subsequent motion to quash the indictment based upon the same grounds, and we think these rulings were correct. Doubtless, if it had appeared that Mr. Wieber was allowed to participate in the final determination, a serious question as to the legality of the proceedings would be presented; but, when it clearly appeared that he did nothing but suggest names and give information as to the character of the persons whose names were under consideration, nothing more than an irregularity appears, which will be deemed immaterial, unless it appears probable that prejudice resulted from such irregular action either in the selection of unfit persons or otherwise. Ullman v. State, 124 Wis. 602, 103 N. W. 6. There is nothing to indicate that any prejudice resulted here, and hence the rulings of the trial court were correct.

2. A demurrer to the indictment on the ground that it failed to state that the county owned the real estate proposed to be sold was overruled, and exception taken. The indictment charged that the county had and maintained within the county a morgue and city poor buildings; that a proposition was pending before the board of supervisors for the sale of that certain piece of real estate upon which the buildings were situated; that during the pendency of said offer the defendant offered the bribe to Strauss in order to influence his official action upon said proposition, and to induce him to vote in favor thereof; and that the defendant paid the bribe to Strauss, who did in fact vote in favor of acceptance of the proposition. It seems evident that the crime charged consists in offering a bribe to the supervisor to influence his action on the proposition of purchase. Whether the would–be purchaser would acquire good title, or any title, cuts no material figure in the quality of the alleged attempt to corruptly influence Strauss' action. A proposition had been made to the county board to purchase such title or interest as it had in the land. Whatever that title or interest was, official action was to be taken thereon by the board, and an offer to pay a member of the board to vote favorably upon the proposition was to all intents and purposes an offer of a bribe, whether the county had good title to convey or no title. The crime is committed when the offer is made with intent to influence official action, and this act is fully charged in the information.

3. The trial court, against objection and exception, admitted testimony given by Otto Seidel, Jr., and August Puls, two other members of the county board of supervisors, to the effect that they were offered bribes by one Anthony Klefisch for the purpose of influencing their official action upon the same proposition for the purchase of the morgue site, and the admission of this evidence is assigned as error. Of course, this testimony could only be admissible against the defendant in the event that the court was of opinion that sufficient evidence aliunde had been introduced to establish prima facie the fact of a conspiracy between the defendant and Klefisch to bribe members of the board of supervisors, and that the alleged transactions of Klefisch with Seidel and Puls were a part of that conspiracy. In the orderly trial of the case, this prima facie proof of the existence of the conspiracy should precede the introduction of the acts or declarations of the co–conspirators, for the very plain reason that its admissibility depends entirely on the fact of the conspiracy. The court may probably in its discretion permit the acts and declarations to be first proven, if such course seem essential to the administration of justice, upon assurance that the proof of conspiracy will be later introduced; but in that event the acts and declarations should be stricken out, unless the conspiracy be afterwards independently established. Wharton's Crim. Ev. (9th Ed.) §§ 698, 698a; Baker v. State, 80 Wis. 416, 50 N. W. 518. Whether the proof be sufficient to make a prima facie showing of conspiracy is a preliminary fact to be decided by the court, and on the finding of the court upon this question the admissibility of the evidence as to the acts and declarations of alleged co–conspirators depends. Schultz v. State, 125 Wis. 452, 104 N. W. 90. It does not clearly appear whether the trial court had this principle in mind, for we find no statement in the record that the court at any time declared that a prima facie case of conspiracy had been made. However, if the evidence was as matter of fact sufficient, the mere absence of the formal declaration cannot be held to be prejudicial. It is strongly argued by the defense that no prima facie case of conspiracy was made, and this is the question upon which this exception depends. The evidence tending to show confederation or conspiracy between defendant and Klefisch was substantially this: They had been familiar friends for a number of years. Seidel testified that on the evening of February 9, 1900 (final action concluding the sale having been taken by the board January 29th preceding), Klefisch and the defendant came to his house together in the evening and asked him to come out; that he came out on the street; that they all walked together up the street toward Mr. Puls' residence; that Klefisch handed him $450 in bills, which he had before promised him as his reward for voting for the sale, and said that they had had an awful time getting the money, some $7,000 or $8,000; that they had to go to Chicago with a letter from Mr. Pfister to some man there, and they did not get what they expected to get; that defendant was present during the whole transaction and participated in the conversation, although the witness gave no specific remark made by him. With some hesitation, we feel obliged to hold here that there was sufficient evidence, if it was believed, to show prima facie that defendant and Klefisch were engaged in a common enterprise. If defendant was present at this transaction, and saw the money passed, and heard Klefisch state that they went to Chicago and got the money, he could not fail to appreciate that he himself was by these remarks implicated in the proceeding, and, if he said no word of denial, the inference that Klefisch's statements involving him were true would be natural and inevitable. His silence, under such circumstances, would become an admission of his participation and would justify the introduction in evidence against him of the declarations of Klefisch which were made during execution of the common design, and until that design was accomplished or abandoned. That design could not be said to be fully accomplished until the corruption fund was paid to its beneficiaries. Baker v. State, supra. So we conclude that there was no error in the admission of the evidence in question.

4. In this connection, it seems most appropriate to discuss the question of the correctness of the charge given by the court upon the effect of the evidence which has just been considered. The court charged the jury as follows: “Testimony was received on behalf of the state as to bribes claimed by it to have been offered by the defendant and one Klefisch at or about the same time to Otto Seidel and August Puls, who were also members of the county board, to influence them...