O'Toole v. State

• Decision Date: 24 November 1899
• Citation: 80 N.W. 915,105 Wis. 18
• Parties: O'TOOLE v. STATE.
• Court: Wisconsin Supreme Court

105 Wis. 18

80 N.W. 915

O'TOOLE

v.STATE.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Error to superior court, Douglas county; C. Smith, Judge.

Mark O'Toole was convicted of robbery, and brings error. Reversed.

On July 4, 1899, one Charley Frederickson, after spending the evening at a resort in a somewhat disorderly part of the city of Superior, started to return therefrom about 10:30 o'clock, and was pursued by two men, from whom he attempted to escape, but who overtook him. He was struck in the back, but not seriously, whereupon one of them, identified as the plaintiff in error, thrust his hand into Frederickson's pocket, and after a struggle carried off his pocketbook, containing money. Upon the trial the complaining witness, Frederickson, testified that, although the night was dark and there was no moon, he saw the face of the plaintiff in error, and was able to state positively that he was the man who took from him the pocketbook. Thereupon the prosecution introduced in evidence the testimony of two police officers that on the day following the robbery the plaintiff in error, among others, was exhibited to the prosecuting witness at the jail, whereupon, after careful observation, Frederickson stated, “I am positive that's the man.” Plaintiff in error was informed against for robbery from the person, not being armed with a dangerous weapon, and charged also with previous conviction in the circuit court for Douglas county of the crime of burglary on May 28, 1896, and a sentence to the state prison for the term of one year, and that said sentence remained of record, unreversed. The jury found plaintiff in error guilty as charged, and that he had been “before sentenced to punishment by imprisonment in the Wisconsin state prison by a court of this state, and such sentence remains of record, unreversed.” Thereupon judgment and sentence was passed upon him July 27, 1899; and thereafter, on August 5th, he moved the court to set aside the judgment and sentence, and for a new trial on the minutes of the judge, on the ground that the same is contrary to law and the evidence in the case, which motion was denied on August 12, 1899. The case comes here upon a writ of error to the judgment of the superior court of Douglas county.

Victor Linley, for plaintiff in error.

E. R. Hicks, Atty. Gen., for the State.

DODGE, J. (after stating the facts).

The first and third assignments of error are predicated upon insufficiency of the evidence to support the verdict. They cannot be considered in the absence of a motion to set aside the verdict and grant a new trial on that ground made before sentence and judgment. True, a motion to set aside the judgment and grant a new trial was made and denied by order after judgment. Such motion and order, however, are not brought up for review by writ of error to the judgment. Hardware Co. v. Berghoefer, 79 N. W. 564, 103 Wis. 359;Reed v. City of Madison, 85 Wis. 667, 56 N. W. 182;Jackson v....