Gutenkunst v. State , 218 Wis. 96 ( 1935 )

The following opinion was filed March 5, 1935 :

Fairchild, J.

The information contained five counts, and charged the plaintiff in error, hereafter called the defendant, with having,-(1) on or about the 15th day of July, 1933,. encouraged, caused, and contributed to the delinquency of one “A,” a minor; (2) between the 1st day of June, 1932, and the 30th day of June, 1932, committed sodomy with one “B,” a minor; (3) on or about the 21st day of October, 1931, committed sodomy with one “C,” a minor; (4) on or about the 15th day of July, 1933, exhibited to “A,” a minor, pictures and figures tending to corrupt'the morals of youth, and (5) on or about the 16th day of July, 1933, exhibited to “B,” a minor, pictures tending to corrupt the morals of youth.

The jury returned its verdict finding the defendant guilty of the crimes charged in counts 1 and 2, and not guilty of the crimes charged in counts 3, 4, and 5.

The defendant contends that the court erred: (1) In not requiring the district attorney, at the close of the testimony, to elect whether the case should be submitted to the jury on counts 1, 4, and 5 (the counts charging misdemeanors), or on count 2 (a count charging a felony), or on count 3 (a count charging a felony) ; (2) in requiring the defendant to go to trial on count 2 of the information and in sentencing the defendant on that count; (3) in permitting the district attorney to make an improper argument to the jury and in refusing to grant a new trial for that reason; (4) in permitting the district attorney to make a closing argument over the objection of the defendant and in refusing to grant a new trial on that ground; and (5) in refusing to grant a new trial because there is no credible evidence to support the verdict.

Defendant’s first assignment of error raises the questions: (1) Whether it was proper to join in one information counts charging separate and distinct misdemeanors with counts charging separate and distinct felonies; (2) whether it was proper to join in one information counts charging separate and distinct felonies.

At the beginning of the trial defendant moved that the state be required to elect upon which counts of the information he should be tried. At the conclusion of the state’s case the defendant moved the court to require the state to elect upon which counts the trial should proceed. Again at the conclusion of the taking of testimony the defendant sought to compel the state to elect which counts should be submitted to the jury. The defendant duly preserved his right to assert errors on which he now relies. The defendant’s motions were denied and all five counts submitted to the jury.

Defendant’s position here is that, while it was not improper to charge separate and distinct misdemeanors in a single information, State v. Gummer, 22 Wis. *441; Boldt v. State, 72 Wis. 7, 38 N. W. 177; 1 Wharton, Crim. Proc. (10th ed.) § 335, it was improper to charge the defendant in the same information with one or more separate and distinct felonies which concededly were not committed at or about the same time or upon the same person or with the same accomplice.

The law of pleading necessarily is elastic and progressive. It has, as have many other branches of the law, advanced through confusion and conflict of precedent. But the rather steady movement has been, at least in this state, toward the method of plain declaration of claim or charge and the bringing into one action all the causes of action the complaining party may have against the other. A pleading in a criminal case performs the same office as it does in 'a civil case. Its purpose is to inform the defendant of the claim or claims made against him. In a criminal case, at least so far as the pleading is concerned, no reasonable grounds exist for not including in the same indictment offenses committed by the defendant, even though they differ from each other, vary in degree of punishment, and were committed at different times “and the accused tried upon the several charges at the same time, provided that the offenses be of the same general character, and provided the mode of trial is the same.” 1 Wharton, Crim. Proc. (10th ed.) § 335. Cases supporting the proposition and against it may be found. Perhaps a larger number of jurisdictions may be found contra to the proposition.

During recent years several states, among which are California, South Dakota, and Washington, have adopted statutes permitting the charging of "two or more different offenses of the same class of crimes or offenses under separate counts” of a single information. Cal. Deering’s Gen. Laws Supp. 1925-1927, Pen. Code, §954; S. D. Sess. Laws 1927, ch. 143; “two or more acts or transactions of the same.class of crimes or offenses, which may be properly joined.” Wash. Rem. Comp. Stat. Supp. 1927, § 2059. In Massachusetts the rule is similar. Commonwealth v. Brown, 121 Mass. 69, 82 :

“The objection that the indictment is bad because more than one offense is joined in it cannot be sustained. It is settled in this commonwealth that several offenses may be charged in the same indictment when they are of the same general nature, and when the mode of trial and the nature of the punishment are the same. Carlton v. Commonwealth, 5 Metc. 532; Booth v. Commonwealth, 5 Metc. 535; Josslyn v. Commonwealth, 6 Metc. 236; Commonwealth v. Costello, 120 Mass. 358.”

The proposition that several offenses may be included in the same indictment or information is the doctrine followed by Wisconsin. The rule has been elastic, and individual cases may furnish some ground for contending that a highwayman who holds úp a filling station in one neighborhood, hurries to another and perpetrates another crime, and so on, until his time or energy is exhausted, can require the state, in pursuing its efforts to maintain law and order and punish the criminal, to give him as many separate trials as he has committed offenses. The course or trend of decisions developing the law in this state has been to recognize the logical method of handling causes of action which the state has against the accused. It places upon the trial court the heavy responsibility of seeing that the charges are so limited as to be prosecuted in good faith without confusing the jury, or putting such a burden upon the defendant as to render it doubtful that he will be able properly to defend himself.

While the point raised here does not seem to have been so vigorously pressed in any other case in this court, we find in State v. Gummer, 22 Wis. * 441, * 442, * 443, the following:

“There was no error in the ruling of the court refusing to quash the complaint for the reason that several distinct offenses were charged therein. In the case of misdemeanors which are only punishable by fine or imprisonment, the prosecution is permitted to join and try several distinct offenses in the same indictment. Kane v. People, 8 Wend. (N. Y.) 203 ; State v. Bielby, 21 Wis. *204; Byrne v. State, 12 Wis. *519.

“Nor can the defendant prevail on the objection that the court below should have compelled the prosecution to elect upon which count they would rely, on the trial. This is a matter resting very much in the discretion of the court, even in the case of felonies. State v. Fee, 19 Wis. *562. The court will only listen to the request to compel the prosecution to elect in felonies when they can see that the charges are actually distinct and may confound the prisoner, or distract the attention of the jury, but will not listen to it in a case of misdemeanor.”

Our statute, sec. 355.14, reads as follows:

“The offense charged in any information shall be stated in plain, concise language, without prolixity or unnecessary repetition. Different offenses and different degrees of the same offenses may be joined in one information in all cases where the same might be joined by different counts in one indictment ; and in all cases the defendant shall have the same rights as to all proceedings therein as he would have if prosecuted for the same offense upon indictment.”

Mr. Bishop in his work on Criminal Procedure, § 421 (vol. 1, 2d ed.), says that, as the court might order separate indictments tried together, so the grand jury might consolidate them in the form of different counts, subject to the right of the court in each instance to interpose when justice requires, by quashing a part or by compelling the prosecuting officer to elect on which count he will ask a verdict. This permits the charging and trying together distinct offenses when no sufficient reason appears why this should not be done. § 422. The same author in § 450 says :

“There are states in which, without statutory aid, the courts permit felonies committed in distinct transactions to be joined, within limits not greatly different from those in misdemeanor. One of these states is Massachusetts, where such has been ‘the long established practice;' the felonies being ‘of the same general nature, requiring the same mode of trial and having the punishment annexed to them of a like nature.' ”

The rule in Massachusetts existed prior to the enactment in Wisconsin of sec. 355.14, Stats. Carlton v. Commonwealth (1843), 5 Metc. (46 Mass.) 532. In 1 Wharton, Crim. Proc. (10th ed.) § 335, it is said:

“And in a leading case, under several counts for conspiracy alleging several conspiracies of the same kind, on the same day, the prosecutor was allowed to give in evidence several conspiracies on different days.”

And in a note cites R. v. Broughton, 1 Trem. P. C. 111, where the indictment charged no less than twenty distinct acts of extortion; the indictment against Mayor Hall tried in New York, October, 1872, which contained four counts for each of fifty-five different acts.

In Martin v. State, 79 Wis. 165, 174, 48 N. W. 119, the court said:

“It is insisted that the motion made to the court to compel the district attorney to elect which one of the counts in the information he would rely upon on the trial should have been granted, and that it was error not to grant the motion. Whether the court should have directed the district attorney to elect was a matter very much in the discretion of the trial judge; and such election cannot be demanded as a matter of right. Newman v. State, 14 Wis. *393, *402; State v. Fee, 19 Wis. *562, 565; State v. Gummer, 22 Wis. 441, 442, 443; Miller v. State, 25 Wis. 384; State v. Leicham, 41 Wis. 565; sec. 4650, R. S.; 1 Bish. Crim. Proc. §421 et seq., §444 et seq.; Stephen, Crim. Proc. 154, and cases. These authorities clearly show that it is not error to join in the same information counts stating separate and distinct offenses, and that it is in the discretion of the trial court whether the prosecuting attorney shall be compelled to elect upon which he will proceed. In the case at bar the indications were that separate offenses had been committed in the same locality about the same time, and the circumstances pointed to the defendant as having committed both. Under these circumstances it was proper that the district attorney should charge both offenses in the same information; and it was not an abuse of discretion on the part of the court not to require him to elect, before the evidence was presented, upon which count he would ask for a verdict.”

Many cases have passed through trial courts, been appealed to this court, and convictions upheld, wherein the defendants were charged with distinct crimes in no way related as to act or time. True, the greater part have been prosecutions resulting from a defendant’s act perpetrated on the same victim, such as in prosecutions for violation of the banking laws, and in cases where different degrees of the same crime have been included in separate counts. But in a number of cases such as Boyd v. State, 217 Wis. 149, 258 N. W. 330; State ex rel. Kropf v. Gilbert, 213 Wis. 196, 251 N. W. 478; Hobbins v. State, 214 Wis. 496, 253 N. W. 570, more than one offense was charged, and these offenses, by any test, must be declared to be separate and distinct. Then, so far as the first contention of defendant is concerned, he was lawfully and properly charged in the information.

Although the offenses in the different counts were separate and distinct, they were not so different in character as to require separate treatment. The mode of trial was the same. So the only question that remains with relation to this phase of the case is whethet or not the trial court abused its discretion in refusing to compel the state to elect one of the several counts upon which to proceed. The nature of the accusation emphasizes the importance of the trial court’s serious consideration of the interest of the defendant. By inclusion of additional charges there was placed before the jury evidence as to different acts. This, of course, would not have occurred had defendant been charged with, and tried upon, one single count. But this furnishes no absolute reason for the granting of a new trial. Consideration must be given and precaution taken to see that the defendant is not confounded in his defense and that none of his substantive rights is unduly affected. The information as drawn, advised the defendant of the accusations. Evidence pertaining to each offense, so far as humanly possible, was confined to such offense; he had the benefit of the presumption of innocence. The acts were of similar class involving similar characteristics. We recognize the need of caution on the part of prosecution and court in combining against the defendant charges of distinct offenses. The importance of this practice was ably pointed out in Kidwell v. United States, 38 App. D. C. 566. If there were the slightest grounds for inferring that the information was prepared in any but the best of faith, based on substantial evidence of guilt of each offense charged, it might be said the court abused its discretion in not compelling an election. But we are of the opinion that it cannot be held under the facts and circumstances disclosed by this record that there was such an abuse of discretion as would warrant setting aside the ruling on this point of the court below. In cases of this nature, involving young persons, more frequently perhaps than in any other class of crimes, the necessity for extreme caution will be present, but in any case, unless something more than a mere possibility of error appears, grounds for reversal do not exist.

The informality and lack of definiteness in the second count of the information is not prejudicial to the defendant. If the act occurred, as alleged, on any day between June 1st and June 30th, the defendant may properly be found guilty thereof. The fact that a witness cannot recall the exact day of an occurrence may in some instances go to the weight of the testimony, but cannot and ought not prevent the prosecution of one committing the act. There was but one offense alleged to have been committed during the month of June. With this certainty in the record, the defendant was placed at no legal disadvantage. The trial court could pronounce judgment upon conviction according to the right of the case. Gundlach v. State, 184 Wis. 65, 198 N. W. 742. The defendant is so protected by this record that he can plead the conviction in bar to another prosecution.

The criticism addressed to the closing argument by the district attorney does not seem to be well taken. There was ample evidence of defendant’s association with boys about eighteen years of age, and suggesting a disposition to indulge in the practice complained of. Emphasizing that fact by calling it to the attention of the jury by words calculated to remind them that his associations were not with men would be proper argument. While in the heat of the controversy words are often used which might as well or perhaps even better be left out of the discussion, this does not in every instance mean that reversible error has occurred. We find in the record, with relation to this assignment of error, no- cause for reversal. We have examined the opening and closing arguments of the district attorney, and do not find them subject to the objection made by defendant.

The evidence presented upon the trial is sufficient to satisfy a jury beyond a reasonable doubt of the defendant’s guilt of the acts charged in the first and second counts on which he was found guilty. The trial judge’s solemn rulings upon the matters presented on this appeal give us no occasion for setting aside the judgment.

By the Court.- — -Judgment affirmed.