State v. Sawyer

• Court: Wisconsin Supreme Court
• Writing for the Court: CURRIE; Owen
• Citation: State v. Sawyer, 263 Wis. 218, 56 N.W.2d 811 (Wis. 1953)
• Decision Date: 03 February 1953
• Parties: STATE, v. SAWYER.

Page 811

56 N.W.2d 811

263 Wis. 218

STATE, v. SAWYER.

Supreme Court of Wisconsin.

Feb. 3, 1953.

Rehearing Denied March 31, 1953.

The appellant, Walter J. Sawyer, was adjudged guilty of bribery under sec. 346.06, Stats., as charged in an indictment returned against appellant by the grand jury of Milwaukee county on April 25, 1950, and sentenced to imprisonment in Wisconsin state prison for two concurrent indeterminate terms of not less than one, nor more than two years. The judgment was entered May 10, 1952.

Sawyer was the principal stockholder and executive manager of Sawyer Downtown Motors, Inc., which corporation occupied as lessee a garage and salesrooms located on the north side of West Wells Street between North Sixth Street and North Seventh Street in the city of Milwaukee. Pursuant to a long-range civic center plan, the city of Milwaukee acquired the property, along with all other property in the same block, and several adjacent blocks, between Wells and State streets, and after 1947, Sawyer Downtown Motors, Inc., occupied the premises on a month-to-month basis as tenant of the city.

In 1946, the city engineer's office prepared a map or plan of the proposed civic center development which was somewhat revised in October, 1948, from which it appeared that the proposed widening of West Wells Street would take fourteen feet off the entire south, or front, end of the building occupied by defendant's corporation. This plan required demolition of all buildings on the north side of Wells Street between North Sixth and North Seventh streets, including the Sawyer garage.

At the trial Albert J. Krause, an alderman of the city, testified that in the spring of 1949, Sawyer paid him $3,000 in cash in two equal installments of $1,500 each, and sold a new Buick automobile to Krause at actual cost (being approximately $600 under the regular established retail price), in return for Krause's efforts to prevent the demolition of the building occupied by Sawyer's corporation. According to Krause's story, these payments were made pursuant to a corrupt agreement entered into between the two in September, 1948. Sawyer denied any attempt to bribe Krause and justified the sale of the automobile at cost on the ground that the parties were old friends, and that in years gone by his company had sold Krause automobiles at a discount. The city changed its plans and the building occupied by Sawyer's corporation did not suffer demolition. Further facts will be stated in the opinion.

Morris Podell and Ray T. McCann, Milwaukee, for appellant.

Vernon W. Thomson, Atty. Gen., William J. McCauley, Dist. Atty., Herbert L. Mount, Special Prosecutor and Harold J. McGrath, Sp. Asst. Dist. Atty., Milwaukee, for respondent.

CURRIE, Justice.

Counsel for the appellant Sawyer raise the following four issues on this appeal:

(1) The indictment is fatally defective in failing to cite the statute alleged to have been violated by Sawyer.

(2) Sawyer was denied a speedy trial as required by the Wisconsin constitution.

(3) The trial court erred in concluding that the testimony and evidence sustained a verdict of guilty.

(4) The trial court erred in refusing to set aside the verdict after determining that the prosecutor's written notes of his final argument to the jury inadvertently were taken into the jury room and were there during the jury's deliberations.

It is the position of defendant's counsel that if any of the first three alleged grounds of error are ruled by this court in favor of Sawyer, then Sawyer is entitled to a judgment of absolute dismissal; while the remedy as to the fourth ground of error would be a new trial.

The indictment returned by the grand jury set forth all the essential elements to charge the crime of bribery against the defendant under the provisions of sec. 346.06, Stats., but failed to cite the number of this statute which Sawyer was charged with having violated. Sec. 355.14(2), Stats. of 1949, provides as follows:

'The information or indictment shall contain the name of the court in which the action is pending, the title of the action, the name of the defendant or a description sufficient to identify him, and a citation of the statute which he is charged with having violated, and shall conclude with the words 'against the peace and dignity of the state.'' (Emphasis supplied.)

It is the contention of the state that Sawyer waived this objection to the sufficiency of the indictment by failing to raise the same before trial by motion. Sec. 355.09(3), Stats. of 1949, specifically provides that the objections based on insufficiency of the indictment 'must be raised before trial by motion or be deemed waived'. The defendant did under date of February 28, 1951, more than a year before the case was called for trial, move to dismiss the indictment upon a number of grounds, among them being:

'4. Upon information and belief, that the Municipal Court of the City and County of Milwaukee, State of Wisconsin, is without jurisdiction to try this case.'

We are of the opinion that the above quoted portion of defendant's motions before trial was not sufficient to apprise the trial court that Sawyer's counsel was questioning the sufficiency of the indictment on the ground that it failed to cite the number of the statute which Sawyer was charged therein with having violated. If a specific motion had been made before trial alleging the defect in the indictment raised for the first time on this appeal, the trial court in its discretion would have had the power to have ordered the amendment of the indictment, so as to cite the statute number, under the provisions of sec. 355.09(8), Stats., which provides:

'No complaint, indictment, information, process, return or other proceedings shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be rightly understood by the court; and the court may order an amendment curing such defects.'

Although the indictment against the defendant was returned on April 25, 1950, the trial was not commenced until April 15, 1952. Sec. 7, art. I of the Wisconsin constitution provides:

'In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.' (Emphasis supplied.)

Sawyer contends that his right to a speedy trial, as guaranteed to him under the foregoing provisions of our state constitution, was denied because of the long delay which ensued between the return of the indictment and the commencement of the trial, and that by reason of such denial he is now entitled to dismissal of the action. The state advances, as one reason for the long delay in bringing the action on to trial, the holding in abeyance of the action against Sawyer pending disposal of the outcome of the prosecution of Krause under an indictment returned by the same grand jury which charged Krause with having accepted a bribe from another party in connection with another matter. The facts in connection with such case against Krause are reported in the decision of this court in State v. Krause, 1951, 260 Wis. 313, 50 N.W.2d 439. In the Krause Case the indictment was returned on March 23, 1950, and Krause's counsel thereafter filed motions attacking the constitutionality of the Municipal Court Act for Milwaukee county pursuant to which the grand jury had been convened and also for dismissal on the ground that the privacy and secrecy of the grand jury proceedings had not been properly maintained. Subsequent to such motions on the part of Krause, similar motions to dismiss raising the same legal questions were made in behalf of Sawyer in the instant case.

Krause having been indicted first, his case was brought on for trial and his conviction was then appealed to this court and the decision on such appeal was not rendered until December 4, 1951. The state did not attempt to bring the Sawyer Case on for trial until after this court had rendered its decision in the Krause Case in view of the fact that the latter decision would dispose of the aforementioned legal issues raised by Sawyer on his motions to dismiss.

After our decision in the Krause Case there was still some further delay in bringing the instant case on for trial due to the fact that Sawyer had previously filed an affidavit of prejudice against the municipal judge of Milwaukee county which necessitated bringing in a circuit judge from outside Milwaukee county to try the case.

While there may have been good reason for part of the delay in bringing the instant case on for trial, there would seem to be merit to defendant's contention that the delay from April 25, 1950, (the date of the return of the indictment) until April 15, 1952, (the date of commencement of trial), did not comply with the constitutional provision requiring 'speedy trial'. However, the briefs of counsel cite no authorities holding that a defendant, such as Sawyer, is entitled to dismissal of the criminal proceedings against him for failure of the state to bring the case on for trial where the defendant has taken no action on his own part to request that his case be brought on for trial.

On February 28,...