State v. Ketchum

• Decision Date: 06 January 1953
• Parties: STATE, v. KETCHUM.
• Court: Wisconsin Supreme Court

Page 531

56 N.W.2d 531

263 Wis. 82

STATE, v. KETCHUM.

Supreme Court of Wisconsin.

Jan. 6, 1953.

Defendant was charged with violation of the provisions of secs. 340.095 and 351.22, Stats., was found by the jury to be guilty of third degree murder under sec. 340.095 and sentenced to imprisonment in the Wisconsin State Prison for a general and indeterminate term of not less than seven nor more than eleven years. From the judgment of conviction defendant appeals. The facts will be stated in the opinion.

Maurice Schmerling, Kenosha, Eugene J. Sullivan, Dennis M. Sullivan and Arthur T. Spence, Milwaukee, of counsel, for appellant.

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

MARTIN, Justice.

The complaint against appellant was made April 20, 1951 and a warrant issued. Preliminary hearing was held May 2, 1951 and appellant was bound over for trial. On October 8, 1951, before arraignment, appellant served and filed an affidavit of prejudice against Alfred L. Drury, judge of the circuit court, and applied for a change of venue on account of community prejudice.

On October 11, 1951 the motion for change of venue came on for argument before Judge Drury, and on the adjourned date, December 26, 1951, Judge Drury denied the motion and set the case for trial. On January 7, 1952, with A. W. Kopp, circuit judge, presiding, appellant filed a motion to dismiss the information on grounds of insufficient evidence to establish probable cause, which motion was denied. No other motion was made by appellant at that time, nor was any objection made to proceeding to trial on the ground that Judge Drury had no jurisdiction on December 26, 1951 to decide the motion for change of venue.

It is the opinion of this court that if, as appellant now contends, Judge Drury was without jurisdiction to decide the motion and the proceedings before him were void under the cases cited by appellant, said motion was pending when the case went to trial before Judge Kopp. In failing to renew the motion at that time, however, and in proceeding to trial without objection, defendant waived the motion for change of venue. He cannot argue that rights secured to him were denied by the trial court, when such rights could have been preserved had he renewed the motion before Judge Kopp at the time the case went to trial.

Appellant's second assignment of error is that the trial court permitted the special prosecutor to testify. The testimony complained of was given by Mr. Bode, the acting district attorney, in connection with the introduction into evidence by the state of a catheter claimed to have been given to the deceased by appellant. Felix Hostnick had testified that the catheter in question resembled one he had seen in the possession of Mrs. Bohleen, the decedent, when he took her to appellant's home two days after the alleged abortion. The testimony by Mr. Bode was to the effect that he had delivered to the director of the State Crime Laboratory the envelope containing the catheter which was found in Mrs. Bohleen's effects after her death.

Appellant cites cases holding that testimony by a district attorney in an action which he is prosecuting offends the canons of ethics, but Canon 19 of the American Bar Association Canons Professional Ethics provides:

'When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel.' (Italics supplied.)

Since Mr. Bode's testimony related only to the formal matter of his custody and delivery of the article in question, we see no error in admitting it.

Appellant's third contention is that he was entitled to a mistrial because of the state's attempt to introduce evidence of other offenses allegedly committed by appellant. In the questioning of Felix Hostnick by the district attorney, the following took place:

'Q. Did he--any further conversation about prior operations that he had performed there?

'Eugene Sullivan: That is objected to----

'A. Yes, he has done numerous----'

Again objection was made that the questioning was prejudicial and appellant's counsel asked that the court declare a mistrial. The court then said:

'Well, Mr. District Attorney, there was a prejudicial question asked that you should not have included, but I deny the motion of a mistrial but I wish to instruct the jury that any reference or any intimation in that question of any other cases on the part of the defendant shouldn't be considered by you at all. There is no proof here that this defendant had ever had anything to do with any other person and unless there is evidence in some way you should not consider that question. Now proceed and ask proper questions, Mr. District Attorney.'

In our opinion, any prejudicial effect which may have been given by the questioning about 'prior operations' was cured by the court's instruction to the jury to disregard it.

The questioning continued:

'Q. Did you have any further conversation with Mr. Ketchum on that day when you returned subsequent to the death of Mrs. Bohleen? A. He said that it is too bad. He said, 'Those things happen very seldom that it happens this way, but it happened this time,' something to that effect.'

and upon objection by appellant's counsel, the court ruled:

'There is no evidence in that question of any attempt by counsel. He can't control the answer the witness made. Let it stand. The question was proper * * *'

We cannot see that this question was improper. In fact, the same question had been asked of the witness a short time before, as follows:

'Q. Will you tell us what you said to Mr. Ketchum that day? A. I said, 'It is regrettable.' I said, 'Mrs. Bohleen died."

Counsel's objection then was:

'That is objected to as being self-serving, a declaration made by him to Mr. Ketchum.

'The Court. Overruled. You may give the conversation whether it is self-serving or otherwise.

'The Witness. Mrs. Bohleen died. What happened? 'Well,' he said, 'Sometimes it happens; very seldom it does happen.' Then he said there is nothing I could do and nothing he could do so I left.'

Appellant's counsel made no objection then that such examination was improper as an attempt to establish the commission of other similar offenses. The answer given by the witness, tending to show that appellant had knowledge of or experience in such matters, was an admission against interest, and admissible.

It is next contended that it was error to allow the district attorney to cross-examine as to prior convictions of the appellant. Upon direct examination th appellant testified:

'Q. Have you ever been arrested and convicted of a criminal offense? A. Yes.'

Referring to such testimony on cross-examination, the district attorney asked:

'Q. You testified on your direct examination you were convicted of a crime. A. I answered yes.

'Q. How many times?

* * *

* * *

'Eugene Sullivan: I object to the form of the question and to counsel's inquiry under the Adams case.

'The Court: He may answer, the number of times. Do not ask what it was for. That has been passed on very recently by our Supreme Court.

'A. Twice.'

Appellant argues that the introduction of evidence such as this constitutes prejudicial error under the decision in State v. Adams, 1950, 257 Wis. 433, 43 N.W.2d 446. In that case the defendant had testified on direct examination to four previous...