State v. Sasse

• Decision Date: 12 May 1888
• Citation: 38 N.W. 343,72 Wis. 3
• Parties: STATE v. SASSE.
• Court: Wisconsin Supreme Court

72 Wis. 3

38 N.W. 343

STATE

v.SASSE.

Supreme Court of Wisconsin.

May 12, 1888.

Appeal from circuit court, Fond du Lac county.

Information of murder against William Sasse.

At the September term, 1885, of the circuit court of the county of Dodge, the defendant, William Sasse, was informed against, arraigned, tried, and convicted of the crime of murder in the first degree, and sentenced to imprisonment in the state prison for life. The case was brought to this court by writ of error, and at the January term, 1887, the judgment therein was reversed for error, and the cause remanded for a new trial. The remittitur was filed in the circuit court during the February term thereof, 1887; that being the fourth term after the arraignment of the accused. During the same term the defendant filed his petition or affidavit, stating that “he has reason to believe and does believe he cannot have a fair trial of such action on account of the prejudice of the judge, Hon. A. SCOTT SLOAN.” The petition does not comply with the requirements of Rev. St. § 4680, which provides that “such change shall not be awarded after the next term succeeding that at which the accused shall have been arraigned, unless such petition states facts showing the existence of prejudice on the part of the judge, unknown to the petitioner at any term of the court prior to the making and filing of such petition.” On such affidavit or petition the court made an order changing the place of trial to Fond du Lac county, and the defendant was afterwards tried in the circuit court of that county, and again convicted. On the trial, on motion of defendant, the court ordered that the jury view the premises where the murder is alleged to have been committed. The view was had in the absence of defendant, who expressly waived his right to be present thereat. The defendant moved for a new trial, for the reason, among others, that it was error to allow the jury to make the view in the absence of defendant. The motion was denied, and thereupon the defendant moved in arrest of judgment for the alleged reason that the circuit court of Fond du Lac county failed to obtain jurisdiction of the case because of non-compliance with the requirements of section 4680 in the petition to change the place of trial. The court thereupon certified the case to this court pursuant to Rev. St. § 4721, for answers to the following questions of law: “(1) Did the trial court acquire jurisdiction to try the cause? (2) Should the motion in arrest of judgment be overruled? (3) Did the court err in accepting the waiver of defendant, and allowing the view without his presence?” Only the substance of the questions submitted is here stated.Atty. Gen. C. E. Estabrook, for the state.

Geo. W. Sloan, for defendant.

LYON, J., ( after stating the facts as above.)

1. The first question submitted calls for a construction of section 4680, Rev. St. The defendant was originally tried in the Dodge county circuit court at the same term at which he was arraigned; and the petition for a change of venue, although not interposed at the next term of that court, was interposed at the next term thereafter at which a hearing thereof could have been had. During the time intermediate the arraignment and the interposition of the petition for a change of the...