State v. Peterson

• Decision Date: 06 March 1928
• Citation: 195 Wis. 351,218 N.W. 367
• Parties: STATE v. PETERSON.
• Court: Wisconsin Supreme Court

195 Wis. 351

218 N.W. 367

STATE

v.PETERSON.

Supreme Court of Wisconsin.

March 6, 1928.

Error to the Circuit Court for Crawford County; S. E. Smalley, Circuit Judge.

Clarence Peterson was convicted of embezzlement, and moved for a new trial. The court granted the motion, and the State brings error. Affirmed.--[By Editorial Staff.]

The defendant was convicted of embezzlement, and moved for a new trial on several grounds, among which was that the evidence was not sufficient to sustain a conviction, and that the trial court erred in permitting private counsel to appear in the preparation and prosecution of the case. The court granted the motion for a new trial on the latter ground, and the state sued out a writ of error to test the correctness of the ruling.John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and J. S. Earll, of Prairie du Chien, for the State.

Kopp & Brunckhorst, of Platteville, J. P. Evans, of Prairie du Chien, and Alvin B. Peterson, of Soldiers Grove, for defendant in error.

VINJE, C. J.

[1] The state does not challenge the fact that it is the established rule in this state that the participation in the trial of a criminal case in court by an attorney paid by private parties is error sufficient to vitiate the conviction. But it is claimed by the state that the assistance given in the trial of this case was not such as to come within the established rule; that at most all that Mr. Grubb, the private attorney, did, was to sit at the district attorney's table while the jury was being drawn, and that afterwards he refrained from coming into the courtroom, though he remained in Prairie du Chien, occupiedthe office of the district attorney, and assisted in questioning prospective witnesses for the state. The trial court, in announcing his decision, stated at least some of the things that Mr. Grubb did in the preparation and assistance in the trial of the case. If we eliminate from the case that part that Mr. Grubb did in the trial thereof in the courtroom, we are faced with the question as to whether private parties can pay an attorney for preparing for the trial of a criminal case. such preparation consisting in occupying the office of the district attorney, in summoning prospective witnesses to the office, and in questioning them and making memoranda of what they can testify to, and in transferring these memoranda to the district attorney for use on the trial, and in consulting with the district attorney as to the prosecution. The fact that the district attorney may incidentally receive advice or help from outside parties, including private attorneys, does not render a criminal prosecution void. The gist of the error lies in the fact the private parties are permitted to pay private attorneys for the prosecution of criminals, which prosecution consists, not only in appearing in court, producing witnesses, questioning them as well as those adduced by the defendant, and arguing the case to the jury, but includes also a preparation for trial, finding out what witnesses can testify to, and producing such testimony in court.

It is clear that the statute contemplates such preparation for trial, for subdivision 2 of section 59.44 provides that, when a judge appoints counsel to assist the district attorney in the trial of a case, it may allow $25 per day for each day actually occupied in the trial, but not to exceed $15 per day, and for not more than five days actually and necessarily occupied in preparing for trial. Thus it seems quite clear that, if it is against public policy to pay from private sources for work done in the actual trial or in the open courtroom, it is equally against public policy to permit private parties to pay for necessary work in preparing for trial. It is true that in cases hereinafter cited the work had all been done in the courtroom. But it seems to us that more harm may be done to the defendant by preparation outside the courtroom and privately paid for than by assistance given in open court. In this case it is not very easy to determine the full extent and scope of the assistance given by Mr. Grubb to the district attorney in the work which he performed in his office. If the work is performed in open court, it is obviously easily ascertainable by both parties, as well as subject to the control of the judge during the trial. Here Mr. Grubb was subject to no one in the work which he did in preparation for trial, and no opportunity was given to the trial court or to this court to determine the exact scope and character of the work Mr. Grubb did. Therefore, when it appears that some substantial work is done by an attorney paid by private parties in the preparation of a trial, and that the result of his labors is given to the district attorney for such use as he may make of it, we think it comes equally within the ban of the rule prohibiting the payment by private parties for work done in assisting the district attorney in the courtroom. Of course, to come within such prohibition all aid, whether given in the courtroom or outside, must be aid which is paid for by private parties, and not by the state or district attorney.

Section 59.47 makes it the duty of the district attorney to prosecute or defend “all actions, * * * civil or criminal, in the courts of his county in which the state or county is interested or a party; and when the place of trial is changed in any such action or proceeding to another county, prosecute or defend the same in such other county.” Section 59.44 provides:

“When there is no district attorney for the county, or he is absent from the court, or has acted as counsel or attorney for a party accused in relation to the matter of which the accused stands charged and for which he is to be tried, or is near of kin to the party to be tried on a criminal charge, or is unable to attend to his duties, the circuit court, by an order entered in the minutes stating the cause therefor, may appoint some suitable person to perform, for the time being, or for the trial of such accused person, the duties of such district attorney, and the person so appointed shall have all the powers of the district attorney while so acting.” Subdivision 1.

Subdivision 2 of the same section provides that the court “may, in the same manner, and in its discretion, appoint counsel to assist the district attorney, in the prosecution of persons charged with crime punishable by imprisonment in the state prison, and in cases of prosecutions before a grand jury, and upon indictments found by grand juries, and in bastardy cases. Such counsel shall be paid such sums as the court, by order entered in the minutes, certifies to be a reasonable compensation therefor, which sum shall in no case exceed $25 per day for each day actually occupied in such prosecution, and not to exceed $15 per day for not more than five days actually and necessarily occupied in preparing for trial in any one case, the same to be paid in the manner provided by law for the payment of counsel for indigent criminals.” And subdivision 3 of the same section reads:

“When there is an unusual amount of civil litigation to which the county is a party or in which it is interested, the circuit court may, on the application of the county board, by order filed with the clerk of said county, appoint an attorney or attorneys to assist the district attorney, and fix his or their compensation.”

Section 59.46 provides for assistance for the district attorney in other than special counties, and section 346.57 provides the district attorney shall not office with other attorneys than partners.

It will be seen from these statutory provisions that the legislative scheme was and is that the district attorney shall prosecute all criminal actions in the courts of his county, and that, where he is not...