State v. Biller

• Decision Date: 05 November 1952
• Citation: 55 N.W.2d 414,262 Wis. 472
• Parties: STATE, v. BILLER et al.
• Court: Wisconsin Supreme Court

Page 414

55 N.W.2d 414

262 Wis. 472

STATE, v. BILLER et al.

Supreme Court of Wisconsin.

Nov. 5, 1952.

The four defendants were charged by information alleging that on or between August 1, 1950 and October 13, 1951, they violated sec. 26.05, Wis.Stats. by unlawfully cutting, taking and converting to their own use forest products on lands belonging to the Wisconsin Conservation Department in the Flambeau State Forest in the value of $1,385.20. The case was tried to a jury and the jury returned a separate verdict as to each defendant finding him guilty and fixing the value of the forest products so unlawfully cut at $133.85. The verdict as to defendant Richard Biller, Sr., read as follows:

'We, the jury in the above entitled action, find the defendant Richard Biller, Sr., guilty of cutting forest products in the Flambeau State Forest as charged in the information and that the value of the forest products so cut was: $133.85.

'Dated June 5, 1952.

'/s/ Richard C. Clute Foreman'

The form of verdict as to each of the other three defendants was in the same identical form as that set forth above for the defendant Richard Biller, Sr.

After the return of the verdicts, defendants' counsel served and filed a written motion for a new trial which alleged the following grounds, among others, in support of such motion:

(1) That the jury made a mistake in its verdict and never intended to find the defendants guilty of any crime.

(2) That the complaint and information were not substantially in the words of the statute and did not constitute an offense.

(3) That inasmuch as the jury found that each defendant cut only $133.85 worth of timber such amount of cutting was insufficient to constitute a criminal offense under the statute.

(4) That three of the four defendants were not present in the courtroom when the court gave additional instructions to the jury.

In support of the first ground for a new trial, that the jury had made a mistake in its verdict, there were attached to the written motion for a new trial the affidavits of three jurors and of defendants' counsel. The body of the affidavit of one of these jurors read as follows:

'Lee Baldridge being first duly sworn on oath deposes and says that he was one of the jurors in the above entitled action, that he did not understand that the case was a criminal case or that a guilty verdict provided for punishment, and his only intention in voting for guilty was to provide that each defendant pay the state of Wisconsin, $133.85, in other words I felt they were guilty of cutting some on state lands, but not criminally guilty, but only liable to the State for the amount we set in the verdict, and no intent to punish the defendants other then they each pay the state for the timber they cut $133.85, and I did not intend to find the defendants or any of them guilty of crime. The evidence was not sufficient to find the defendants guilty of a criminal offense, but we thought the only way we could get them to pay for the timber they cut was to find them guilty and then it was our intention they each pay $133.85 and we had no other intentions. We did not feel the State had proved a criminal case, only a damage suit or damages against each defendant in the sum of $133.85.'

The affidavits of the other two jurors, although more brief than that of the juror Baldridge, were substantially to the same effect. The affidavit of defendants' counsel stated that he had contacted eight of the jurors, including the three who thereafter made the affidavits which were attached to the motion for a new trial, and that he had read the affidavit of the juror Baldridge to the other five jurors and that each told him that such affidavit was true but refused to sign similar affidavits. Counsel's affidavit concluded with the following statement:

'I was also told by the jury that prior to the additional instructions to the jury on the question of value in the blank in the guilty verdict and just prior thereto, the jury was 7 for acquittal and 5 for convictions and that after they voted for guilty apparently gleaning from the courts instructions that whatever they set as value would be all the defendants would have to pay, getting such idea from some statement of the court that the inserting of value was to guide the court, and thought he would be guided exactly by it and figured they would compromise and have the defendants each pay $133.85, but that was their only intentions.'

Under date of July 7, 1952, the trial court entered an order which set aside the verdicts and granted a new trial on the ground that the jury made a mistake in its verdicts and never intended to find the defendants, or any of them, guilty of any crime. From this order the state has appealed pursuant to sec. 358.12(1)(b), Stats.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., for appellant.

Ralph W. Stellar, Hayward, for respondent.

CURRIE, Justice.

The state contends that it was error for the trial court to grant a new trial on the ground of a mistake by the jury in arriving at their verdicts, and, that by so doing, the trial court permitted the jurors to impeach their own verdict.

The affidavits of the jurors contain no allegations that any mistake was made by the foreman of the jury in recording in the verdicts that which constituted the answers determined upon by the jurors. That which is alleged in the affidavits to have been a mistake was therefore not a mistake in recording the verdicts of the jury, but a mistake of the jurors as to the legal effect of their verdicts.

This court has many times determined that jurors cannot impeach their own verdict in the manner that was permitted in the instant case. The reasons for so holding are well set forth in the decision of the court in Brophy v. Milwaukee E. R. & T. Co., 1947, 251 Wis. 558, 566-7, 30 N.W.2d 76, 80, as follows:

'The remaining question is whether or not the verdict is lawfully impeached by the subsequent affidavits and statements of the jurors. The general rule is that jurors will not be permitted to impeach a verdict by affidavit. Ordinarily their power over the verdict ceases when they are discharged. Only within narrow limits can they impeach the verdict by what they say after having been discharged. If a mistake has been made so that the verdict is not correctly reported, then evidence showing what the jury actually did agree on is to be considered. In a sense that is not impeaching the verdict, for the verdict is the agreement which the jurors reach in their deliberations and not the written paper which is filed if, through a clerical error or otherwise, that does not express the jurors' agreement. Edmiston v. Garrison, 1864, 18 Wis. *594, *603; Butteris v. Mifflin & Linden M. Co., 1907, 133 Wis. 343, 347, 113 N.W. 642; Imperio v. State, 1913, 153 Wis. 455, 460, 141 N.W. 241; Holub v. Cootware, 1919, 169 Wis. 176, 170 N.W. 939; Woodward v. Leavitt, 1871, 107 Mass. 453; 27 R.C.L. [Verdict], pp. 896-901, § 68-74.

'There is sound public policy behind this general rule prohibiting impeachment of their verdict by the jury. The formality and dignity of the court proceedings are intended to provide as appropriate a surrounding as possible for the achievement of justice. The jury is kept apart from influences which might prejudice its decision. If jurors after being discharged and after mingling with their friends who may have expressed approval or disapproval of the jury's verdict, are to be allowed to impeach that verdict, the unbiased evaluation of the evidence which the solemn court proceedings are intended to facilitate, will have ceased to control decisions. In talking after the trial to those who did not like the verdict, a juror might be inclined to express a wish that it had gone the other way. He may honestly think that if he had it to do over again he would vote differently. He may admit that he would have voted differently if he had known what the legal effect of the verdict would be. It is likely that there should be such reactions in some cases. But such subsequent reactions are not to be allowed to impeach the verdict. If they were allowed, the verdict would cease to be a decisive thing, putting an end to litigation; the jurors would become subjects of post trial chicanery, improper persuasion and possibly bribery. In any event, objective discovery of the truth would be hampered, not promoted.'

Brophy v. Milwaukee E. R. & T. Co. supra, was a civil and not a criminal action, but the principle therein announced is equally applicable to criminal actions. The case of Imperio v. State, 1913, 153 Wis. 455, 460, 141 N.W. 241, 242 involved a criminal prosecution and conviction of the two defendants, Imperio and Roberti, for murder, and the court in its opinion in that case stated:

'Complaint is made because the trial court refused to grant a new trial as to Roberti upon the affidavits of some jurors impeaching their verdict. That assignment of error is ruled in favor of defendant in error by the familiar principle that affidavits of jurors, except as to matters outside the jury room or some mistake in framing the verdict so as to report what was agreed upon, cannot be used as a basis for setting the verdict aside. Only within quite narrow limits can a juror impair his verdict by affidavit or anything he may say or do after having been discharged from the case.'

Therefore, it is our conclusion that the order setting aside the verdicts and granting a new trial, on the ground that the jury made a mistake in rendering such verdicts, cannot be sustained.

However, counsel for defendants rightly contends that under the provisions of sec. 274.12(2), Stats., the defendants are entitled to review of any errors, the correction of which would support the order appealed from, without the necessity of the defendants filing a notice of review. It is the position of defendants' counsel that errors were committed by the trial court in...