State v. Lawler
Citation | 267 N.W. 65,221 Wis. 423 |
Parties | STATE v. LAWLER, AND FOUR OTHER CASES. |
Decision Date | 28 April 1936 |
Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to the Circuit Court for Milwaukee County; A. H. Reid, Judge Presiding.
Proceedings by the State against Charles G. Lawler, Frank J. Amann, Jordan Schuster and others, Frank J. Amann and others, and Eugene Warnimont and others. To review a judgment dismissing each of the cases, the State brings error.--[By Editorial Staff.]
Judgment reversed and remanded in each of the cases except as to defendant Eugene Warnimont and others.
Each of the above cases is before the court upon an indictment returned by the grand jury for the county of Milwaukee to the municipal court, in which the state of Wisconsin is plaintiff in error and will hereafter be referred to as the plaintiff. The several persons named in the indictments are defendants in error and will hereafter be referred to as the defendants. The cases all involve the same questions. They will be treated together, but a separate mandate will be entered in each case.
The several defendants filed pleas in abatement to which the district attorney demurred. The pleas set up the instructions given by the court to the grand jury and allege that the instructions were inconsistent and erroneous, and for that reason the pleas in abatement should be allowed and the indictments quashed. The question at issue is sufficiently indicated by the following portions of the charge which was given on April 11, 1934:
At a subsequent time the court instructed the grand jury as follows:
The trial court was of the view that the instructions were inconsistent, that the instruction that the indictment might be returned upon probable cause was erroneous, overruled the demurrers, and quashed the indictments. Judgment was entered dismissing the cases accordingly. The state of Wisconsin sued out writs of error to review the judgments.
James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., Herman A. Mosher, Deputy Dist. Atty., and Francis A. Darnieder, Sp. Asst. Dist. Atty., all of Milwaukee, for the State.
I. A. Dinerstein, of Milwaukee, for defendant in error Lawler.
George A. Burns, Walter H. Bender, and I. A. Dinerstein, all of Milwaukee, for defendants in error Schuster and others.
Bitker, Tierney & Puchner, Alexander, Burke & Clark, and Niven & Mullaney, all of Milwaukee, for defendants in error Amann and others.
Two questions are presented by the record: (1) Assuming the instructions given by the court to the grand jury to be erroneous, does such error vitiate the indictments returned by the grand jury? (2) Is the instruction that an indictment may be returned upon sufficient credible evidence to satisfy the jury that there is probable ground for accusation erroneous?
1. We shall first consider whether an indictment is vitiated by an erroneous instruction by the court to the grand jury. A decision of the question presented requires some consideration of the law relating to grand juries in this state. In this state grand jurors are no longer summoned as a matter of course. The summoning of the jurors, the organization of the jury, and the procedure to be followed by it are prescribed by sections 255.11 to 255.28, inclusive, Wis. Stats. The oath of the grand juror requires him to “diligently inquire and true presentment make of all matters and things as shall be given you in charge; the counsel of the state of Wisconsin, your fellows and your own, you shall keep secret; you shall present no man for envy, hatred or malice, neither shall you leave any man unpresented for love, fear, favor, affection or hope of reward; but you shall present things truly, as they shall come to your knowledge, according to the best of your understanding; so help you God.” Section 255.19.
There is no provision in the statutes of this state which requires the court in which the jury is summoned to instruct the jury. There are such statutes in many states. However, according to the common law the court in which the jury was drawn was accustomed to instruct the jury, and no question is raised but that it is right and proper for the court so to do. Blackstone says: 4 Blackstone, *303. See, also, 10 Stand.Enc. of Procedure 380, and cases cited.
[1] While it is the duty of the court to instruct the jury, a failure of the court in that respect does not invalidate the indictments returned. Stewart v. State (1865) 24 Ind. 142;Fuller v. State (1905) 85 Miss. 199, 37 So. 749;Clair v. State (1894) 40 Neb. 534, 59 N.W. 118, 28 L.R.A. 367.
In Commonwealth v. Sanborn (1874) 116 Mass. 61, the court said: “The provisions of the Rev.St. [citations omitted], binding the grand jury to secrecy, and directing the court in charging them to remind them of these provisions, do not make the instructions of the court, on this or any other matter, essential to the validity of their indictments.”
[2] In a technical legal sense the grand jury is charged when it is sworn. Commonwealth v. Sanborn, supra. See, also, State v. Froiseth (1871) 16 Minn. 313 (Gil. 277); Wadlin's Case (1814) 11 Mass. 142;People v. Lauder (1890) 82 Mich. 109, 46 N.W. 956;State v. Edgerton (1896) 100 Iowa, 63, 69 N.W. 280, 282.
We have been cited to no case and diligent search has failed to reveal one where it has been held that error in the instructions of the court to the grand jury is ground for the quashing of an indictment. In cases where that question has arisen it has been held to the contrary. State v. White (1885) 37 La.Ann. 172;Commonwealth v. Sanborn (1874) 116 Mass. 61;State v. Turlington (1891) 102 Mo. 642, 15 S.W. 141.
In the state of New York there appears to be an exception to this rule, but it arises from the fact that in that state the court is by statute required to instruct the jury and to read to them certain sections of the Criminal Code, and even there it is held that the discretion exercised by the court in giving its instructions to the grand jury will not be reviewed unless grossly abused to the prejudice of the defendant. People v. Glen (1901) 64 App.Div. 167, 71 N.Y.S. 893;Id. (1903) 173 N.Y. 395, 66 N.E. 112.
[3] By the great weight of authority the weight or sufficiency of the evidence before the grand jury to warrant it in returning an indictment is not reviewable upon a plea in abatement or a motion to quash the indictment. Cases are collected in the note “Quashing indictment for lack or insufficiency of evidence before grand jury.” 59 A.L.R. 567.
[4] If it be made to appear that there was no evidence before the grand jury or the sole evidence upon which it acted was illegal, the indictment may be quashed. See 24 A.L.R. 1432.
It has been held, however, that, where the court goes beyond the giving of instructions to the jury and expresses an opinion as to the guilt of a particular person, an indictment may be quashed. State v. Will (1896) 97 Iowa, 58, 65 N.W. 1010;Clair v. State (1894) 40 Neb. 534, 59 N.W. 118, 28 L.R.A. 367. See 28 C.J. 785, §§ 58, 59; 10 Enc. Plead. and Prac. 380, and cases cited.
In People v. Glen (1903) 173 N.Y. 395, 400, 66 N.E. 112, 114, the Court of Appeals said: ...
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