State v. Halverson
Decision Date | 01 November 1966 |
Citation | 32 Wis.2d 503,145 N.W.2d 739 |
Parties | STATE of Wisconsin, Respondent, v. Roy HALVERSON, Appellant. |
Court | Wisconsin Supreme Court |
Lawton & Cates, Madison, for appellant.
Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Thomas L. Massey, Dist. Atty., Fond du Lac, for respondent.
The defendant contends that the jury instruction given by the trial court as to prima facie effect of a demand to show intention to convert to use of the defendant or another was prejudicially erroneous.
The state, in answer to this contention argues (1) that the defendant has waived and objection to the instruction, and (2) that the instruction is not erroneous.
The defendant was charged with a violation of sec. 235.701, Stats.:
* * *'
The parties agree that intent to convert must be proven before a conviction can be had under the provisions of sec. 235.701, Stats., 2 therefore the theft section of the Criminal Code must be considered. The applicable section is 943.20(1)(b). It is as follows:
'(1) Whoever does any of the following may be penalized as provided in sub. (3):
'(a) * * *
The defendant, at the trial, by his attorney, submitted to the court a written request for jury instructions. The written request for instructions included the following:
'2. Wis. J.I.--Criminal 1444--THEFT BY EMPLOYEE, TRUSTEE, OR BAILEE (EMBEZZLEMENT)'
The trial judge included instruction No. 1444 substantially as it appears in the model instructions (Wis J.I.--Criminal).
The instruction in its entirety will not be repeated here. It includes four essential elements that must be proven beyond a reasonable doubt before the defendant can be found guilty. Included in the model instruction is an alternative section to be used in appropriate cases when a demand for the property has been made by a person entitled to it and the defendant has refused to give it up or return it. This alternative section was given as a part of the instructions to the jury.
Counsel for the defendant asked for a copy of the instructions before they were given. The trial judge informed counsel that he did not have a copy of the instructions to give him. The statute 3 does not require a copy of the instructions be given to counsel before they are given to the jury; it only requires that the instructions be written before given or that they shall be taken by the official reporter when given. In any event, error is not claimed in not having a copy of the instructions before they were given to the jury.
After the jury instructions were given and the jury had retired to deliberate, counsel for the defendant objected to the instruction by the following language: 'I am going to object to the Court's instruction as to evidence received and to demand by Mr. Matthew; * * *.' The court noted the objection and did not further instruct the jury.
In the case of State v. Kanzelberger (1965), 28 Wis.2d 652, 659, 137 N.W.2d 419, 422, this court recognized that stature of the Wisconsin Jury Instructions:
In this instance counsel made a specific written request for a model instruction by its number. The portion of the instruction of which defendant now complains was given substantially as it appears in the model instruction. If counsel was of the belief that a part of the instruction should not be given or that a particular alternative part should not be given, it was his duty to make this fact specifically known in his written request. When a written request is made by reference to a model instruction by number, the trial court cannot be expected to know of any exceptions or reservations that counsel has to the instruction.
Objections to an instruction must be made at a time when an error, if it be one, can be corrected. Here the objection was made right after the jury retired to deliberate. It is probably preferable, as a matter of trial procedure or trial tactics, to wait until the charge to the jury is completed to voice an objection to an instruction rather than to interrupt with an objection at the instant the challenged instruction is given. In any event, we conclude the objection was timely made. The jury could have been recalled for further instruction at this very early stage of their deliberations without any significant disruption.
The objection itself, however, was completely inadequate. From the language of the objection quoted above, it was impossible to determine in what respect any instruction was being challenged. The objection should be specific--it should not only identify the particular instruction or instructions objected to, but should also state what counsel contends is the proper instruction. This is especially so when the court has given the instruction requested by counsel.
We hold counsel has waived any objection to the court's instruction to the jury by his request for the model instruction given and by failure to make specific objection to the challenged instruction.
We could affirm the judgment upon the ground that any objection to the court's instructions to the jury has been waived, but because the claimed erroneous instruction is based upon an alleged inadequacy of a statute we deem it advisable to consider the merits of the defendant's objection.
The instruction to which the defendant now voices an objection was given as follows:
...
To continue reading
Request your trial-
State v. Gomaz, 86-0933-CR
... ... The objection should be specific--it should not only identify the particular instruction or instructions objected to, but should also state what counsel contends is the proper instruction.' Id. (emphasis added) (quoting State v. Halverson, 32 Wis.2d 503, 511, 145 N.W.2d 739 (1966)) ... This distinction set forth in Bethards between the inadequacy of a general objection and an objection supported by the submission of an alternative or additional instruction which properly preserves an objection reflects the purpose ... ...
-
Hayes v. State
...this aspect of the assigned error was waived at trial and no basis exists to raise this error on appeal. See State v. Halverson (1966), 32 Wis.2d 503, 145 N.W.2d 739; Jones v. State (1967), 37 Wis.2d 56, 154 N.W.2d 278, 155 N.W.2d 571; Okershauser v. State (1908), 136 Wis. 111, 169 N.W. It ......
-
St. Croix Reg'l Med. Ctr. v. Keller
...court, the statute was “designed to prevent the disposition of funds for purposes other than lienable claims.” State v. Halverson, 32 Wis.2d 503, 515, 145 N.W.2d 739 (1966). Like § 779 .02(5), § 706.11(3) is intended to prevent an owner from “find[ing] himself in a position where he would h......
-
State v. Davis, S
... ... Lampkins v. State (1971), 51 Wis.2d 564, 187 N.W.2d 164; Mitchell v. State (1970), 47 Wis.2d 695, 177 N.W.2d 833. An objection is not timely if it is made after the time when the error could have been corrected. Lampkins v. State, supra; State v. Halverson (1966), 32 Wis.2d 503, 145 N.W.2d 739 ... The defendant waived any possible assertion of error by failure to make a timely objection ... NEW TRIAL IN INTEREST OF JUSTICE ... In order to grant a new trial in the interest of justice under sec. 251.09, Stats., ... ...