State v. Cotter

• Decision Date: 20 June 1952
• Citation: 262 Wis. 168,41 A.L.R.2d 222,54 N.W.2d 43
• Parties: , 41 A.L.R.2d 222 STATE, v. COTTER.
• Court: Wisconsin Supreme Court

Page 43

54 N.W.2d 43

262 Wis. 168, 41 A.L.R.2d 222

STATE, v. COTTER.

Supreme Court of Wisconsin.

June 20, 1952.

The defendant was tried upon an information charging him with assault with intent to murder one Henry Matrious. The jury found him guilty of assault with intent to do great bodily harm. Upon the verdict the trial court adjudged the defendant guilty and sentenced him to imprisonment in the Wisconsin state prison at Waupun. The defendant appeals from the judgment and sentence dated November 14, 1951. The facts material to and argued upon the appeal will be stated in the opinion.

Doar & Knowles, New Richmond, for appellant.

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

BROADFOOT, Justice.

The defendant contends that he is entitled to a new trial because of an incident that occurred as the jury retired to the jury room for its deliberations. The affidavit of defendant's counsel made in support of his motion for a new trial related the incident as follows:

'* * * that the jury empaneled * * *, after retiring to the jury room for deliberation, was visited by and talked to by Sheriff Emil Stusek, who was appointed as officer in charge of said jury.

'That prior to the jury retiring for deliberation they were placed in the custody of said Sheriff, Emil Stusek, who took the oath set forth in Wisconsin Statutes 331.40 from the Clerk of Court, Madeline Huth; that the affiant herein saw the said sheriff, Emil Stusek, go into the jury room and heard him talking to them; that after the bailiff, Emil Stusek, had removed himself from the jury room, the affiant herein walked up to him, approached him and the bailiff explained, 'I just told the jury they would not hurt my feelings if they hurried.'

'That the affiant herein immediately returned to the court room to make objection to the Honorable Carl H. Daley as to such conduct on the part of the officer in charge of the jury and that he had to wait until a recess was had by the court who was at the time empaneling another jury; that at this recess the affiant herein advised the court of the misconduct of the officer in charge of the jury who was also a witness of the state in the prosecution of the action and who had also secured evidence for the state and objected to such conduct as being prejudicial to the defendant herein.

'That the court was thus advised and that such objection was made prior to the returning of any verdict in the above case by the jury who subsequently announced a verdict of guilty.

'That the officer in charge of the jury above referred to admitted to the court upon being questioned that he had made the above statement to the jurors.'

At noon the jury returned to the court room and the following proceedings were had:

'The Court: Somebody has claimed that something was said to the jury to the effect that it wouldn't hurt his feelings if you hurried, or didn't take long. I want to instruct the jury that you are to disregard that statement. You can take as much time as you want to decide the case. You don't need to feel that you are under pressure with the court at all. Do I make myself clear? Does the jury feel that you were hurried on the verdict?

'Foreman: Well, we haven't reached a verdict yet.

'The Court: Well, you better go out to dinner first. The sheriff will make arrangements for your dinner.

'(The jury retired to the jury room at 12:01 p. m. November 7, 1951.)'

In opposition to the motion for a new trial the state presented an affidavit by Stusek, together with affidavits of seven jurors, which indicated that the remark was made in jest and that the jurors were not influenced in any way thereby. The motion for a new trial was denied.

The record also discloses that at the time of the alleged offense Stusek was deputy sheriff and took part in the investigation of the facts. At the time of the trial he was the sheriff of Burnett county and was a witness for the state.

In criminal cases it has been held for many years that an unauthorized communication to the jury or a member thereof not made in open court and a part of the record is ground for the granting of a new trial. The rule is shown in the following quotations:

'The result of the adjudications on this subject is to the effect that all proceedings in a case should be open and public, and in the presence of the parties, whenever practicable, so as to afford them all reasonable opportunity to participate in the proceedings, and, if they are dissatisfied, to take such exception as the law allows. The due observance of this rule has led to a disapproval by the courts of any act by the judge, counsel, party, or stranger, whereby communication is had with the jury after the case is submitted to them, and they have retired for deliberation on their verdict,...