State v. Cooper

• Decision Date: 06 May 1958
• Citation: 89 N.W.2d 816,4 Wis.2d 251
• Parties: STATE of Wisconsin, Respondent, v. John COOPER, Appellant.
• Court: Wisconsin Supreme Court

Page 816

89 N.W.2d 816

4 Wis.2d 251

STATE of Wisconsin, Respondent, v. John COOPER, Appellant.

Supreme Court of Wisconsin.

May 6, 1958.

McWilliams & Steil, Janesville, for appellant.

Stewart G. Honeck, Atty. Gen., William A. Platz, Asst. Atty. Gen., Joseph B. Forrestal, Dist. Atty., Rock County, Mark J. Farnum, Asst. Dist. Atty., Rock County, Janesville, for respondent.

BROADFOOT, Justice.

The first assignment of error is that the jury was permitted to separate during the four-day trial. Permitting the jury to separate during trial has been held to be reversible error in cases where the defendant was charged with what was formerly known as a 'capital offense.' Rowan v. State, 30 Wis. 129; State v. Dolling, 37 Wis. 396; Clifford v. State, 58 Wis. 477, 17 N.W. 304; Hempton v. State, 111 Wis. 127, 86 N.W. 596. The defendant contends that this rule applies to all homicide cases.

The defendant cites Newbern v. State, 222 Wis. 291, 260 N.W. 236, 268 N.W. 871. In that case the defendant was charged with bank robbery. Two of the robbers were killed and a bank employee was abducted and left dead with a dead bandit beside the road a few miles from the scene of the robbery. Upon appeal from his conviction the defendant alleged error because the jurors were not kept together during the trial. Other errors were claimed but this court held that the errors, if committed, were not prejudicial and affirmed the judgment of the circuit court. Upon motion for a rehearing a new trial was ordered in the interest of justice. However, it was stated there was no error in the rules of law stated and applied in the original opinion. Because of the circumstances and the feeling in the community, the court directed that upon the new trial the jurors be kept in custody of an officer during the trial. It was stated that this is required on trials of charges of homicide. That statement in the per curiam opinion on the motion for rehearing was not a correct statement of the law and is expressly overruled.

The matter of the separation of the jury in criminal cases is governed by statute in most states. Except in the case of a conflict with a statutory provision and except in cases where the penalty may be life imprisonment, it is the general practice to permit the jury to separate until the cause is submitted to it for its final deliberations. The matter rests within the discretion of the trial court. Baker v. State, 88 Wis. 140, 59 N.W. 570; State v. Amundsen, 37 Wash.2d 356, 223 P.2d 1067, 21 A.L.R.2d 1088. Even though the rule was as contended for by the defendant, he waived that right by failing to request that the jury be confined or placed in custody of an officer or officers. State v. Sawyer, 266 Wis. 494, 63 N.W.2d 749.

The motion for a new trial was supported by the affidavits of two of the jurors in addition to those of the defendant and one of his attorneys. The state contends that the affidavits of the jurors are incompetent since jurors are not permitted to impeach their verdict or reveal the nature of their deliberations. That is the general rule. However, there are exceptions to that general rule. In the Hempton case, supra, 111 Wis. on page 145, 86 N.W. on page 602, this court said:

'* * * It is a well-settled principle of law that affidavits of jurors cannot be used to impeach their verdict, but that rule applies only to affidavits concerning their conduct in court or when deliberating upon the case. Their conduct outside the court room may be established by their own affidavits for the purpose of impeaching their verdict.'

The first sentence of that quotation was affirmed in the Newbern case. So far as the affidavits of the jurors are competent they merely indicate that some of the jurors read a report of the proceedings in the Beloit Daily News. A copy of that report was attached to the moving papers and it indicates that the testimony of one witness, an employee of the Federal Bureau of Investigation, was not correctly reported. In spite of that, the first juror in her affidavit indicated that she properly understood the testimony of the witness. The affidavits state there was confusion among the jury as to the testimony of this witness. This was during the deliberations of the jury and the affidavits are incompletent as to anything that took place during the deliberations. There is nothing in the affidavits to indicate that the jurors were misled by the newspaper account. There is an annotation in 31 A.L.R.2d 417 dealing with the reading of newspaper accounts of trials in a criminal case by jurors. Although the jury should have been instructed more fully at the beginning of the...