Smith v. State
| Citation | 8 N.W. 410,51 Wis. 615 |
| Parties | SMITH v. STATE OF WISCONSIN. |
| Decision Date | 24 March 1881 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to circuit court, Dunn county.
Ives & Mathews, for plaintiff.
Alex. Wilson, Att'y Gen., for the State.
The plaintiff in error was tried and convicted upon an information charging him with rape. After verdict, and before judgment, the plaintiff in error moved the court to set aside the verdict and grant a new trial upon the following grounds: Upon the exception taken to the introduction of evidence; that the verdict is against the evidence; that the defendant's counsel had not been given an opportunity to be present at the coming in of the jury and delivery of the verdict; and that the jury had been discharged before the rendering of the verdict. Upon this motion the defendant submitted the affidavits of his attorneys showing that they desired to be present at the time of the rendition of the verdict; that the jury retired to consider upon their verdict at about 9 o'clock in the evening, and thereupon the court adjourned until 9 o'clock the next morning; that defendant's counsel remained in the court room until about 11 o'clock in the evening, and, the jury having failed to agree at that time, the defendant's counsel retired to his office, a short distance from the court-house, and went to bed; that between 6 and 7 o'clock in the morning the jury came in with their verdict, which was received by the court, and the jury discharged; that no notice was given to the attorneys for the defendant that the jury had agreed, or had brought in their verdict, at or before the time said verdict was received by the court and the jury discharged, and that they did not learn that any verdict had been rendered until the opening of the court at 9 o'clock in the morning.
The defendant also submitted the affidavit of the deputy sheriff in attendance upon the court, showing that he made no attempt to notify the counsel of the coming in of the jury in said action, and was told by the honorable circuit judge presiding at such trial, before the coming in of the jury, that on their coming in he need not notify the defendant's counsel. The record further shows that when the jury came in to render their verdict the under sheriff asked the judge if he should go for the defendant's counsel, and the judge replied, “No; it was not necessary.” The motion to set aside the verdict and grant a new trial was denied, and defendant excepted, and final judgment and sentence were pronounced against the defendant. The record also shows that upon the opening of the court, at 9 o'clock in the morning, the defendant's counsel appeared and demanded to have the jury polled, which was refused by the court. In this court the counsel for the plaintiff in error assigns for error the same reasons assigned upon his motion to set aside the verdict. The exception to the evidence, we think, was properly overruled. The defendant had asked the principal witness whether any one had told her that it was Robert Smith who did it, and in reply to that question she answered that Mr. Brehmer told her he thought it was Robert Smith; and upon her re-examination she was asked whether she had told Brehmer about this matter before he said he thought it was Robert Smith who did it. To this inquiry the defendant's counsel objected, but the court permitted her to answer, and she testified: This reply, we think, was properly received as evidence. She had been asked by the counsel for the defendant if she had been told by any one that the guilty person was the defendant, and she had replied that Brehmer had said he thought it was the defendant. This evidence was clearly drawn out by the defendant for the purpose of raising an inference that she was testifying as to the identity of the accused upon the strength of Brehmer's opinion. It was, we think, competent in reply to show that Brehmer had not expressed any opinion until after he had heard a description of the offender given by the witness. The witness was not allowed to state what she said to Brehmer, or to state to the jury how she had described the offender, but simply in general terms to state that she had described the offender to Brehmer before he gave his opinion. To that extent we think the evidence was competent to rebut the inference sought to be drawn by the reply drawn out by the questions of the defendant's counsel.
We see no objection to the form of the verdict, nor to the manner of its reception or entry. The entries of the clerk of the court in his “minute book” as to the reception of the verdict are as follows:
“Upon the jury coming in, and after they were called by the clerk and answered, the defendant being in court, the court asked the jury if they had agreed upon their verdict. The foreman answered, ‘We have,’ and handed a written verdict to the court, whereupon the court said, ‘Gentlemen, you say you find the defendant guilty; so say you all?’ The jury answered, ‘Yes.’ The court then read the written verdict, and the jury all answered, ‘Yes.’ The following verdict was received and filed: ‘The jury empanelled in the case of the State of Wisconsin against Robert Smith find a verdict of guilty.
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¦[Signed]¦‘JONATHAN STODDARD, Chairman.’ ”¦
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These entries sufficiently show that the jury in that action returned a verdict of guilty against the defendant, and a sufficient recording and entry thereof. See section 742, Rev. St. 1878, subd. 4. We think the entry of the verdict in the minute book kept by the clerk is the only entry and record thereof which need be made in any case before discharge of the jury. 3 Wait's Practice, 194. If it be necessary to enter the verdict in the criminal record, such entry can be made after the jury is discharged. It is clear that the entries need not be made in the court record in the first instance, from the fact that the statute provides that the entries in the record shall refer, when necessary, to the volume and page of the minute book where the minutes had of the proceedings in every case can be found The learned counsel for the plaintiff in error insists that the court committed an error in refusing to set aside the verdict on the ground that the counsel for defendant were not present when the verdict was received, and was not notified to be present, but, on the contrary, the court instructed the sheriff's officer, who was in attendance and could readily have notified counsel, that it was unnecessary to do so. The record, we think, shows that the defendant's counsel were not voluntarily absent when the verdict was received, and also that they were desirous of being present at that time. The counsel who tried the case remained at the court-house several hours after the jury had retired, and until a late hour at night, waiting for the jury to...
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State v. Wojtalewicz, 84-1025-CR
... ... The Wisconsin Supreme Court addressed the issue more than a century ago and held that a defendant in a criminal case "has the right to poll the jury ... and a refusal to permit him to do so is error, for which the verdict will be set aside." Smith v. The State, 51 Wis. 615, 620, 8 N.W. 410, 412 (1881). Despite its age, Smith remains the law today, and it is in line with the rule adopted in the great majority of jurisdictions to the effect that a defendant's right to poll the jury, if not waived, is absolute, and its denial requires reversal ... ...
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State v. Behnke, 88-2228-CR
...Amend. VI, U.S. Const.; Art. I, sec. 7, Wis.Const. The return of the verdict is a critical stage of the proceeding. Smith v. State, 51 Wis. 615, 620-21, 8 N.W. 410 (1881); Spencer v. State, 85 Wis.2d 565, 571, 271 N.W.2d 25 (1978); Siverson v. O'Leary, 764 F.2d 1208, 1214 (7th Both the stat......
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Spencer v. State
...that the state constitutional guarantee of counsel's assistance applied at the time of the acceptance of the verdict. Smith v. The State, 51 Wis. 615, 8 N.W. 410 (1881). The reading of the verdict is an integral part of the trial, and a defendant has the right to poll the jury. "If, by the ......