Rudolph v. State

Siebegkee, J.

The defendant alleges that the court erred in holding that the indictment charges an offense under ch. 84, Laws of 1901, whereby it is provided that: “Any person who shall advise the commission of or attempt to commit any felony'as defined in section 4637 of the Wisconsin Statutes of 1898, that shall fail in being committed, the punishment for which such advice or attempt is not otherwise prescribed in these statutes, shall be imprisoned or fined . . as prescribed. It is contended that the court submitted the case to the jury upon the theory that defendant was being prosecuted for the offense of an attempt to commit the crime of bribery, but that the facts alleged and shown by the evidence fall short of establishing an attempt to commit the crime of bribery, for the reason that the fact of soliciting another to join in the ■commission of this offense does not constitute an attempt, in *228 that the alleged criminal transaction is devoid of any overt acts which are necessary to constitute an attempt to commit a crime. That solicitation to commit a crime is an offense at common law seems well supported by authorities and writers on the criminal law. Mr. Wharton, speaking of the result of the adjudications, states:

“Are solicitations to commit crime independently indictable? They certainly are, as has been seen, when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public-justice; as where a resistance to the execution of a judicial-writ is counseled, or perjury is advised, or the escape of a prisoner is encouraged, or where the corruption of a public officer or a witness is sought, or invited by the officer himself.” 1 Wharton, Grim. Law (10th ed.) § 179. See, also, 1 Bishop, New Crim. Law, § 767; 1 McClain, Crim. Law, § 220; Comm. v. Flagg, 135 Mass. 545 ; Walsh v. People, 65 Ill. 58 ; People v. Hammond, 132 Mich. 422 , 93 N. W. 1084 .

The language of ch. 34, Laws of 1901, is clear in expressing the idea that to advise or attempt to commit any felony defined in the statute is an offense, punishable as prescribed. The charge preferred in the indictment comes within the definition of this statute, and constitutes an offense within its terms.

It is urged that no attempt to commit a felony is proven by the evidence adduced, because no overt act by the defendant is shown, even though a criminal intent may be manifest. There is evidence tending to show that the defendant asked Hamilton for $100 as a condition for voting for the allowance of his claim, and urged him to pay it and an additional sum to other committee members, and that he offered to have the committee convened and to secure favorable action on the claim if his demands were granted. These acts occurred just before the committee was to take action and pass upon the claim, and were in immediate connection with and the nearest steps to an actual consummation of the offense. This gives *229 them the character of overt acts, done in furtherance of a criminal design. They are circumstances which show in their very nature that defendant committed them “in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime.” 3 Am. & Eng. Ency. of Law (2d ed.) 250.

The defendant pleaded immunity from prosecution upon the ground that he had Leen subpoenaed and had appeared and given evidence before the grand jury. This claim is based on ch. 85, Laws of 1901, providing that no witness or party shall be excused from testifying in certain cases upon the ground that his disclosure might expose him to prosecution for any crime, but that he shall not be prosecuted for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence. It appears that defendant was subpoenaed, that he appeared and was sworn, and that he testified before the grand jury to the effect: that •he was an alderman from the Eleventh ward of the city; that he knew of no bribery or crookedness in public affairs; that he was a member of the railroad committee; and that he Aid not know who introduced the Manville ordinance. In the case of State v. Murphy, ante, p. 201, 107 N. W. 470 , this statute is construed, and it is there held that a denial by a witness that he knew of bribery in public affairs does not entitle him to immunity upon the ground that he has testified concerning any transaction, matter, or thing within the purview of the statute. The facts of the Murphy Case and of the instant case are, as to this question, in all respects the ■same, and the decision in that ease rules the question here.

It is, however, claimed that, when the defendant testified before the grand jury to the fact that he was an alderman from the Eleventh ward of the city of Milwaukee, he gave testimony which came within the constitutional privilege that *230 “no person . . . shall be compelled in any criminal case to-be a witness against himself” (sec. 8, art. I, Const.), because this fact is material to establish the offense charged in this indictment and of which he was found guilty. In State v. Thaden, 43 Minn. 253 , 45 N. W. 447 , Justice Mitchell,. speaking for the court on this subject, says:

“All the authorities agree to the general proposition that the statement of the witness that the answer will tend to crim-inate himself is not necessarily conclusive, but that this is a question which the court will determine from all the circumstances of the particular case, and the nature of the evidence which the witness is called upon to give.”

This rule is supported in this court in Kirschner v. State, 9 Wis. 140 ; Emery v. State, 101 Wis. 627 , 78 N. W. 145 ; and in other courts in Calhoun v. Thompson, 56 Ala. 166 ; 1 Burr’s Trial, 245 ; Queen v. Boyes, 1 B. & S. 311. In the last case cited it is declared “that, to entitle a party called as-a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence that the witness is called to give, that there is reasonable-ground to apprehend danger to the witness from his being compelled to answer.” The fact that a witness may be asked to testify concerning a fact which is not a part of a criminal' transaction, but is material in a prosecution based on such a transaction, as giving his name or his presence in some locality remote from the scene of crime, or stating whether he was, in fact, a public official at the time it is claimed the offense was committed, do not in themselves constitute incriminating statements tending to show him- guilty of crime, though upon a prosecution for some offense it may develop-that they are material. It is manifest that if defendant were testifying in another case and he were asked his name, his-residence, or whether he had been a certain official at a specified time, it could not be urged that he need not answer upon the ground that it might expose him to a prosecution for a *231 crime, for in. themselves they do not tend to show criminality, though a combination of circumstances in connection with some criminal transaction might make it material to show them in a criminal prosecution.

“It is obvious, . . . that the notion of a fact Tending to criminate’ is that of a fact forming, in the phrase of Chief Justice Mahshall, ‘a necessary and essential part of a crime.’ ” 3 Wigmore, Evidence, § 2261.

Mr. Wharton, in his Criminal Evidence (9th ed.) § 466, speaking on this subject, states:

“We have several rulings to the effect that a witness cannot be compelled to give a link to a chain of evidence by which his conviction of a criminal offense can be furthered. This proposition, however, cannot be maintained to its full extent, since there is no answer which a witness could give which might not become a part of a supposable concatenation of incidents from which criminality of some kind might be inferred. To protect the witness from answering, it must appear from the nature of the evidence which 'the witness is called to give that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. . . . The question is for the discretion of the judge, and in exercising this discretion he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. But in any view the danger to be apprehended must be real, with reference to the probable operation of law in the ordinary course of things, and not merely speculative, having reference to some remote and unlikely contingency.”

Tested by this rule, we cannot conceive how the bare statement by defendant that at a certain time he was an alderman of-the city of Milwaukee, a fact which must obviously have been generally known, could in any degree aid in tending to expose him to the danger of a prosecution for a crime. To give,it such significance would certainly be speculative and imaginary; such a result would not follow naturally from such a statement. The following cases have a bearing on this subject: Brown v. Walker, 161 U. S. 691 , 16 Sup. Ct. *232 644; Miskimmins v. Shaver, 8 Wyo. 392 , 58 Pac. 411 ; Ex parte Irvine, 74 Fed. 954 . See, also, 1 Greenleaf, Evidence (16tb ed.) § 469d et seq.

It is claimed tbat tbe court erred in receiving tbe evidence of Hamilton and Pease concerning statements made in tbe clerk’s office and before tbe members of tbe committee having tbis claim in charge, and to tbe effect tbat, if tbe claim were not allowed by tbe committee and council, Hamilton would seek to enforce it by suit. Tbe evidence tends to show that' defendant participated in tbe committee proceeding while tbis claim was being considered, and tbat be probably was informed of tbe claimant’s threatened enforcement by suit if it were disallowed by tbe common council. Under these circumstances tbe ruling was proper.

• . Further claim is made tbat tbe conversation elicited from Mr. Rose on cross-examination was improper, because it in nowise related to what be, as defendant’s witness, bad testified on direct examination, which tended to impeach tbe witness Hamilton, called by tbe state. It appears sufficiently tbat tbis conversation bad a béaring on testimony given on direct examination and served to explain it. Tbis made it relevant, and it could properly be adduced on cross-examination.

We find no error in the record.

By the Court. — Judgment affirmed.

Cassoday, C. J., took no part.