State v. Lawler

Citation267 N.W. 65,221 Wis. 423
PartiesSTATE v. LAWLER, AND FOUR OTHER CASES.
Decision Date28 April 1936
CourtUnited 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: “To justify the finding of an indictment, you must be convinced, so far as the evidence before you goes, that the person whose conduct is being investigated is guilty of an offense against the laws of the state. In other words, you ought not to find an indictment unless in your judgment the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury.”

At a subsequent time the court instructed the grand jury as follows: “I will again call your attention to the fact that while you are carefully, fairly and fully to investigate all that shall come before you, yet you must remember that your inquiry must not assume the nature of a trial. It is simply an investigation. You must not, however, think from what has been said, that your duties are not important to the person accused, as well as to the state. It is incumbent upon the grand jury to satisfy their minds by a diligent inquiry, upon sufficient credible evidence, that there is probable ground for an accusation before they give it their authority and call upon anyone to make a public defense.”

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.

ROSENBERRY, Chief Justice.

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: “This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.” 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: “The grand jury is an institution that we inherited with the common law. It is for many legal purposes, rather difficult of classification. It is neither a regularly organized tribunal nor yet an entirely informal body. While in a certain sense a part of the court in connection with which it conducts its deliberations, it is, for many purposes, free from any restraint by that court. A grand jury is clothed with power to determine both the facts and the law, and its methods of procedure, so far as they are not discretionary, are fixed by statute and not by rules of courts. The judge or justice presiding at a court held in connection with a grand jury must charge them, but beyond the explicit direction to read or deliver to them sections 252 to 267, inclusive, of the Code of Criminal Procedure, the character and scope of the charge is largely a matter of discretion. No exception lies to such a charge, and there is...

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  • Cummiskey v. Superior Court, S024295
    • United States
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    • November 23, 1992
    ...of proof greater than that required at common law, which must govern here, there being no statute." (State v. Lawler (1936) 221 Wis. 423, 267 N.W. 65, 69, 70; 105 A.L.R. 568, 573, italics In an Oklahoma case, the defendant argued that a magistrate at a preliminary hearing ought to use the s......
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    ...is not concerned that the evidence, then available, establish the commission of crime beyond a reasonable doubt. State v. Lawler, 1936, 221 Wis. 423, 267 N.W. 65, 105 A.L.R. 568. The end result of a grand jury's deliberations is not a judgment and sentence, but merely a charge; consequently......
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    ...150 N.W.2d 370 (1967).23 State ex rel. Welch v. Waukesha Co. Cir. Court, 52 Wis.2d 221, 224, 189 N.W.2d 417 (1971); State v. Lawler, 221 Wis. 423, 435, 267 N.W. 65 (1936).24 John Mohr & Sons, Inc. v. Jahnke, supra, n.12. See also, other cases cited in n.12, supra.25 Nash v. United States, 2......
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    ...185 Ark. 539, 48 S.W.2d 847, 82 A.L.R. 1051; Coblentz v. State, 1933, 164 Md. 558, 166 A. 45, 88 A.L.R. 886; State v. Lawler, 1936, 221 Wis. 423, 267 N.W. 65, 105 A.L.R. 568; Adams v. State, 1938, 214 Ind. 603, 17 N.E.2d 84, 118 A.L.R. 6 Temple v. Commonwealth, 1881, 75 Va. 892; Ex parte Sa......
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