Murphy v. State

SiebeckeR, J.

The plea in abatement, alleging that the court had no jurisdiction of the person or of the subject matter of the transaction, is based upon the ground that no. sufficient and valid complaint had been filed before the defendant was arrested and the preliminary examination was. held. The complaint states facts which, in effect, set forth the necessary elements constituting the alleged offense. The complainant in form deposes and states that he, “being first' duly sworn, on oath complains to the district court of the county of Milwaukee, and states that he has good reason to< believe and does believe” that the defendant, while acting in his official capacity as an alderman of the city of Milwaukee, did corruptly receive money to influence him in his official action, vote, and judgment in respect to matters then pending wherein he was by law required to act. The contention is that a complaint upon information and belief does not *645 meet the requirement of sec. 4776, Stats. 1898, which provides that: “Upon complaint being made to any magistrate that a criminal offense has been committed, he shall examine, on oath, the complainant and-any witnesses produced by him, and shall reduce the complaint to writing and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed the magistrate shall issue a warrant reciting the substance of the accusation,” for the apprehension of the accused, and thereupon require an officer to execute it. This section and sec. 4740, Stats. 1898, contain the provisions for making complaints and the issuance of warrants for the apprehension of offenders. These two sections, in so far as they bear on the inquiry before us, are alike, and any construction which has been given by this court to the terms of either of these statutes will be pertinent and material in passing on the question raised by the plea in abatement.

In State ex rel. Long v. Keyes, 75 Wis. 288 , 44 N. W. 13 , it is declared that see. 4776, adopted as early as 1839, was taken from the statutes of New York.as it had there stood for some time. The claim that a good and sufficient complaint under this statute must state in positive and direct terms that the offense charged has been committed was fully considered and determined in the case of State v. Davie, 62 Wis. 305 , 22 N. W. 411 . True, that was a complaint charging a simple misdemeanor, upon which the accused was tried, convicted, and sentenced; but, as above indicated, the requirements of the statute now before us and the one before the court in that case are alike in providing what proceedings shall be had in making complaint for the apprehension of offenders. ■ In that ease, as in this, the constitutional provisions which prohibit persons from being held to answer for criminal offenses without due process of law were appealed to. Upon a full consideration of this question, then presented, and in view of the adjudications in other jurisdictions seemingly in conflict *646 on the subject, it was determined that under'our statutes a formal complaint which states that the complainant was “informed and has good reason to believe and does verily believe” that the offense described had been committed (naming the offender) meets the particularity and certainty required in charging the offense by the terms of this statute. It is pointed out that the statute requires that an oral complaint be first made to the magistrate, and he thereupon is required to put the person complaining and the other witnesses produced by him under oath; and the complaint shall then be reduced to writing, but need not have a written verification on oath appended to it, but it must be based on the sworn oral statements of the complainant and witnesses, if any are produced, made to the magistrate on examination by him. If, after such proceeding, the magistrate is satisfied that an offense has been committed and that the person accused is the probable offender, he is authorized to issue a warrant reciting the substance of the complaint and directing his apprehension. Under the proceeding thus provided it was held that the statute did not contemplate that the formal written complaint could be made in positive terms only, but that a formal complaint on information and belief is sufficient. It is supposed that the facts disclosed to' the magistrate upon his examination on oath of the complainant and the witnesses, if any, satisfies him that an offense has been committed and that a warrant should issue for the apprehension of the person charged. This practice was upheld in the case of State v. Hobbs, 39 Me. 212 , which was expressly approved in the Davie Case. This construction of the statute fulfils the con-stitutionál requirements of due process of law, in that the proceeding results in an adjudication by the magistrate that good grounds are shown for the apprehension of the accused. State v. Bielby, 21 Wis. 204 .

Counsel concede that the practice of trying persons upon complaint on information and belief in misdemeanor cases is *647 sanctioned and approved, but assert that such practice is 'unauthorized in the case of felonies. The grounds for such a distinction are not apparent because of any difference in effect on the legal rights of persons involved in the two proceedings, for each subjects the party to an accusation, arrest, and inquisition as to whether or not he is guilty as charged. If any difference in strictness of procedure should be indulged, then less particularity and certainty should be required in. proceedings for the arrest for a preliminary examination before an inferior tribunal to determine whether a party should be held for trial than in cases where persons are arrested and tried upon complaint which may result in conviction and sentence. Comm. v. Phillips, 16 Pick. 211 . For other cases on the subject, see State v. Dale, 3 Wis. 795 ; State v. Bielby, supra; State ex rel. De Puy v. Evans, 88 Wis. 255 , 60 N. W. 433 .

This construction of the statute, we believe, has been followed since its adoption, and has the sanction of long years of acquiescence in the tidal courts, and has not been questioned in this court except in the instances above mentioned. We must hold that the complaint is sufficient under sec. 4475, and that the plea in abatement was properly overruled.

2. The information charges that the defendant, pursuant to an understanding and agreement with one Oscar E. Davis, corruptly received money to influence him in the casting of his vote as a member of the common council of the city of Milwaukee for the passage of an ordinance pending before the common council, whereby it was sought to grant to the Davis Bros. Manufacturing Company the right to lay a railroad track along and across a public street of the city. The charge is alleged with sufficient particularity to meet the requirements of sec. 4475, Stats. 1898. The defendant demurred to the information upon the ground that it appeared upon the face thereof that the ordinance described therein could not, by law, be then pending, nor be brought before *648 the common, council for action or for a vote, because t-be ordinance was void, in that it was thereby attempted to grant to the Davis Bros. Manufacturing Company a right and privilege which the common council had no power or authority to grant, and in that any action thereon by the common council would be wholly void and of no effect. It is contended that the privilege or license which the common council attempted to grant by this ordinance is void, because it attempts to grant the manufacturing company the use of a public street for private purposes. It may be assumed that the privilege attempted to be given by this ordinance was a private one, and that the use of the street authorized by the ordinance was one which the common council had no right to grant to individuals.. The question then arises, Do the facts alleged in the information constitute an offense under sec. 4415, Stats. 1898.? This section provides that:

“Any person -who shall corruptly give, offer or promise to any . . . legislative . . . officer of . . . [a] city . . . any gift or gratuity, or any money, goods, thing'in action, personal or real property, or anything of value, . . . with intent to influence his vote, opinion, judgment or action upon any question, matter, cause or proceeding which may then bo pending, or which may by law come or be brought before him in his official capacity, and any such officer who shall corruptly accept or receive any such gift, [etc.] under any agreement or understanding that his vote, opinion, judgment or action should be thereby so influenced shall be punished” ■ as prescribed.

The language of the statute malíes it plain that the acts charged as criminal must arise out of a transaction which pertains to a question, matter, cause, or proceeding wtbich is pending, or -which may by law come or be brought, before such officer in his official capacity. It is claimed that since the ordinance attempted to bestow on the members of the company a privilege which in law it had no right to grant, it must be held that the act of voting on the passage or re *649 jection of' tbe ordinance was wholly beyond and outside of tbe official power and ditty of tbe defendant as a member of tbe common council, and therefore bribery cannot be predicated ón bis action in relation thereto. It is without dispute that tbe common council is given the right to control, regulate, and repair tbe streets of tbe city, to regulate tbe manner of using tbe streets and pavements, and to protect them from injury. This power not only authorizes tbe council to regulate tbe public use of tbe streets, but imposes upon it tbe duty of preventing unlawful uses of them, and to do this tbe members of tbe common council are empowered to prescribe by ordinance what are deemed proper and what are improper uses of tbe streets. Whenever they pass their opinion or judgment or when they take action upon such questions they are in tbe exercise of powers and duties pertaining to their official capacity. Whether tbe act of voting on this ordinance by a member of tbe common council was an act relating to bis official capacity cannot be tested by tbe validity or invalidity of tbe privilege sought to be granted, but depends upon tbe question of whether or not tbe ordinance was one which dealt with a subject over which tbe common council bad jurisdiction, and upon which tbe members of tbe common council bad a right to vote. Tbe subject of tbe ordinance clearly related to tbe proper regulation of tbe street in question. It was an application to tbe council for a certain use of a street, ■concerning which tbe common council bad power to act, and ¡the members were called upon to ascertain and determine whether or not tbe use which was sought to be sanctioned and authorized by this ordinance was a proper one, and in passing on this question it was the right and duty of the members of tbe common council to vote when tbe ordinance came before them for passage and adoption. If tbe ordinance attempted to grant an unlawful use, then it was tbe duty of tbe members of tbe common council to vote against its adoption. In view of tbe right they bad and tbe duty imposed *650 upon them, tie question is not whether or not the ordinance-granted a valid privilege, but whether the members of the common council had the right to vote on the question of its-passage and adoption. In view of the powers and duties imposed upon them by the city charter, it is clear that under the powers given them to control and regulate the manner of using the public streets they had the right to deal with the subject matter of the ordinance. The power, therefore, embraces the right and imposes the duty on members of the common council of refusing to sanction an improper and illegal use of such streets under cover of authority from them. The voting on such an ordinance is action by members of the common council within their official capacity, and if a member receives money from any person under an understanding or agreement that his vote, judgment, or action should be influenced thereby, then he offends against the terms of the' statute.

We are cited to the cases of James v. Bowman, 190 U. S. 127 , 23 Sup. Ct. 678; U. S. v. Boyer, 85 Fed. 425 ; Collins v. State, 25 Tex. Supp, 202; and State v. Butler, 178 Mo. 272 , 77 S. W. 560 , among others, as sustaining the position that bribery cannot be predicated upon the action of the defendant in voting on the ordinance in question because the privilege sought to be bestowed is invalid. An examination of these decisions shows that they do not support the contention, but that, in so far as they deal with the subject in hand, they support the conclusion above stated. In those instances wherein it was ruled that no offense had been shown, it was upon the ground that the act charged as corrupt official conduct pertained to some matter over which the law neither expressly nor by implication granted the officers involved any authority. Such cases differ from the instant case, which presents one wherein the accused is charged with having received money corruptly to influence him in his vote and action upon a matter and proceeding over which the common council1 *651 Rad been given jurisdiction and power, under wbicb a matter was legally pending before bim in bis official capacity. These circumstances furnish a proper basis on wbicb to found the charge of bribery. This conclusion is sustained by numerous cases, of wbicb we cite the following: State v. Ellis, 33 N. J. Law, 102; People v. McGarry (Mich.) 99 N. W. 147 ; Glover v. State, 109 Ind. 391 , 10 N. E. 282 ; People v. Salisbury, 134 Mich. 537 , 96 N. W. 936 ; and State v. Potts, 78 Iowa, 656 , 43 N. W. 534 .

3. Error is assigned upon the ruling of the trial court to the effect that the proceedings before a grand jury are privileged from being adduced before it as evidence by the defendant for the purpose of showing bis. immunity under sec. 4078, Stats. 1898, as amended by ch. 85, Laws of 1901. The amended section provides that no witness or party in the actions, proceedings, or examinations therein specified

“shall be excused from testifying on the ground that bis testimony may expose him to prosecution for any crime, misdemeanor or forfeiture. But no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning wbicb be may testify, or produce evidence, documentary or otherwise, in sxich action, proceeding or examination, except a prosecution for perjury committed in giving such testimony.”

It is not questioned but that this statute gives the defendant an important right, in that be may assert a statutory exemption from punishment by way of defense in a criminal prosecution. An act of Congress of like import was held valid legislation, and it was decided that under its terms witnesses and parties could be compelled to give testimony of a self-incriminating character, if the provisions of the statute afforded immunity from prosecution for the offensevto which the testimony related. Brown v. Walker, 161 U. S. 591 , 16 Sup. Ct. 644. The defendant interposed a plea in bar claiming immunity from punishment for the offense charged *652 .in tbe information upon the ground that he appeared before the grand jury of Milwaukee county while it was in session in the month of January, 1902, and gave testimony as to the transaction, matter, and things alleged in the information. Upon the trial of the special issue raised by this plea he attempted to compel the production of the minutes of the proceedings of the grand jury for the purpose of offering them as original evidence to sustain the allegations of his plea in bar, but the court ruled these minutes as well as the testimony cf members of the grand jury and the district attorney to be privileged under the rule of secrecy applied to proceedings before a grand jury. The purpose of such secrecy is embodied in the terms of their oath of office, and was designed to further an efficient and effective administration of the ■criminal law. The authorities as to whether testimony of the proceedings before a grand jury is competent as original evidence upon a trial in court are not uniform. They unite in declaring that it can at no time be shown how the individual jurors voted, or what was said by them during their deliberations, for the reason that a disclosure thereof could not serve any purpose of justice. In Comm. v. Mead, 12 Gray, 167 , the court, speaking on this subject, through Justice Bigelow declares:

“The reasons on which the sanction of secrecy which the ■common law gives to proceedings before grand juries is founded are said in the books to be three-fold: One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge’of facts testified to before the grand jury, which, 'if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made.”

*653 All of the reasons practically disappear after the arrest of the accused, when he is put upon his trial in court. The only one of these grounds which could possibly, in a measure, subsist is the danger of subornation, and this is quite effectually disregarded in modem criminal law, which approves the right and the procedure by which the accused, in fairness, is informed before trial of the witnesses the state relies upon to establish the case. An examination of the adjudications leads us to the conclusion that evidence by grand jurors of’ the statements made before them by witnesses and parties is-competent upon trials in courts, and that the weight of' authority sustains the practice whenever the trial court deems-it necessary for the ascertainment of truth and in furtherance-of justice. Of the leading 'authorities on this subject we-cite the following: State v. Benner, 64 Me. 267 ; Izer v. State, 77 Md. 110 , 26 Atl. 282 ; Comm. v. Mead, 12 Gray, 167 ; Comm. v. Hill, 11 Cush. 137 ; People v. Houghton, 38 How. Pr. 430 ; 4 Wigmore, Evidence, §§ 2360-2363; 3 Rice, Evidence, 412.

It is urged that the rule of the common law as to the competency of this class of evidence cannot control, because the subject is regulated by statute, which excludes it except as therein made competent. The statutory provisions on the subject are embodied in secs. 2553-2555. An examination of' these sections shows that, when the court so orders, grand jurors and officers attending’on them a-re forbidden to make-disclosure of the fact that an indictment for felony has been found until the arrest of the offender; that the jurors are not. allowed to state or testify in what manner they may have-voted, or -what opinion was expressed by any of them, on any question before them; and that the members of the jury may be required to testify as to whether the testimony of a witness examined before them is consistent with or differs from his evidence before a court; and in prosecutions for perjury of” the person who appeared and testified before them they may *654 be required, to disclose tbe testimony given before them. It will be observed that the'statutes are declaratory in part of the rules which had been established by the courts as to the competency of such evidence in the administration of the criminal law, but they in no way indicate that it was thereby intended to interfere with the established practice, which was to the effect that it is proper to examine a grand juror upon a trial in court as to what a witness testified to before the grand jury, when not objectionable under the ordinary rules of evidence, and when the ends of justice require it. The supreme court of the state of Florida, in construing their statute on this subject, which is the same in terms and phraseology as the sections above mentioned, held that they in no way abrogated the common-law rules which prevailed when the statute was adopted. See Jenkins v. State, 35 Fla. 737 , 18 South. 182 , and cases cited; Hinshaw v. State, 147 Ind. 334 , 47 N. E. 157 . Upon these grounds we must hold that the court erred in holding that the evidence of grand jurors, the district attorney, and the minutes of the grand jury’s proceedings could not be received as original testimony, when it is material to the issues involved upon this trial.

But an additional and very strong and cogent reason for holding this evidence material and competent is found in applying the provisions of ch. 85, Laws of 1901, quoted above. As stated, this statute takes from the defendant a very important right, in that he may be compelled to give testimony before the grand jury, and for the deprivation of this constitutional privilege has granted him complete immunity from prosecution or subjection to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testified or produced evidence. If the defendant can establish that he is entitled to such immunity, it will be a complete defense to any further proceeding and entitle him to a discharge from further prosecution. In its legal aspect this right is as important to the defendant as any *655 legal defense to tlie accusation. No grounds are suggested why lie should not he awarded the usual and ordinary methods recognized by the law for showing the facts necessary to establish this defense, nor do any valid reasons suggest themselves to us for holding that he should be deprived of this right given him in the law. We are of the opinion that this evidence, if otherwise unobjectionable, is competent as original evidence on the question involved in the issue raised by defendant’s plea in bar, and should have been received, regardless of whether or not defendant testified as a witness upon the trial. It is the policy of the state not to compel persons charged with crimes to testify in their own behalf. This privilege should not be imperiled by denying them the right to employ any legal means to establish their defenses.

4. It is contended that the court erred in directing a verdict against defendant on the special issue raised by this plea in bar. The evidence before the court upon this issue seems to permit of no inferences tending to sustain defendant’s plea. Under these circumstances the court was warranted in instructing the jury that there was no proof before them \fhich could support defendant’s plea, and that they must so find upon the special issue.

5. It is further alleged that there was a fatal variance between the evidence and the allegations of the information, and that the court improperly refused to give the instructions requested on this point. We deem it sufficient to state as to this assignment of error that we do not find a fatal variance between the proof and the charge. The facts in evidence were such that a jury might reasonably infer that defendant was the recipient of a part of the money paid by Oscar E. Davis, and that he received it under an understanding that it was received for the purpose of influencing his vote or action in reference to the ordinance in question. State v. Dunn, 125 Wis. 181 , 102 N. W. 935 . Defendant’s requests for instructions to the jury on this branch of the case do not *656 require separate attention, because tbe charge of the court sufficiently and properly covers the points embraced in them and correctly informs the jury of the rules of law applicable thereto.

The defendant submitted several instructions requesting* the court, in effect, to inform the jury that they would not be warranted in law in convicting the defendant, because the evidence relied on to establish guilt is the uncorroborated evidence of accomplices in crime. In the case of Black v. State, 59 Wis. 471 , 18 N. W. 457 , this court held that: “When there is no evidence against the accused, except the uncorroborated testimony of an accomplice, it is discretionary with the trial court whether to direct an acquittal or notand that “a judgment will not be reversed for refusing to set aside a verdict founded upon such testimony alone." The rule thus adopted was approved in State v. Juneau, 88 Wis. 180 , 59 N. W. 580 , and in Porath v. State, 90 Wis. 527 , 63 N. W. 1061 . In the latter case, speaking on this subject, it is said:

“It was discretionary with the trial court whether to direct an acquittal or not, and a judgment founded on such uncorroborated testimony alone will not be reversed. The trial court was not required to direct an acquittal on that ground, or to give any instruction to the jury as to the effect of the testimony of the prosecutrix" (if she be regarded as an accomplice).

This ruling is supported by the established practice, upon the principle that the trial court acts within the field of its discretion as to whether a verdict of acquittal should be directed, or admonitory instructions cautioning them against finding a verdict of guilty upon such testimony only should be given to the jury. An examination of the evidence in this case shows clearly that the court did not abuse its discretion in refusing to give the requested instructions, in that the testimony is amply sufficient to sustain the verdict; but the *657 judgment of tbe court cannot stand on account of tbe error in excluding proof of tbe proceedings before tbe grand jury.

By the Court. — Tbe judgment is reversed, and tbe cause is remanded for a new trial. Tbe inspector of tbe Milwaukee bouse of correction will deliver tbe plaintiff in error to tbe sheriff of Milwaukee county, wbo is directed to keep tbe said Murphy in bis custody until be is duly discharged therefrom, or until otherwise ordered according to law.