Niezorawski v. State

Timlin, J. The defendant demurred to the indictment, but, evidently aware that the alleged irregularities in the drawing of-and in the proceedings by the grand jury did not appear on the face of the indictment and that the questions he desired to present could not be raised by demurrer, there was presented, upon motion to quash the indictment and opposing affidavits, a state of facts showing that the jury commissioners for Milwaukee county in June, 1903, selected a list of persons to serve as grand jurors in that county for the ensuing year and entered the names upon a suitable record book, certified to the same, and deposited such book with the — 171 — clerk of the circuit court for Milwaukee county, with whom it remained until about December 1, 1903, when it was taken to the municipal court of the same county for the purpose of drawing therefrom a panel of grand jurors to serve for the December, 1903, term of the municipal court. The book thereafter remained with the clerk of the municipal court, and from the remainder of the list therein contained, there was-also drawn the panel of grand jurors for the Eebruary, 1904,. term of the municipal court, which indicted the defendant. After the second grand jury was drawn the book was returned to the clerk of the circuit court. The stenographer who attended the sessions and reported the testimony of witnesses before the grand jury filed his oath with the secretary of the grand jury. Sec. 2546a, Stats. (Supp. 1906; Laws of 1903, ch. 90, sec. 2) : “Immediately after such grand jury list has been completed said commissioners shall enter the names of the persons composing it upon a suitable record book kept for the purpose and shall certify over their respective signatures that such list is correctly entered and recorded therein and shall thereupon deposit such record book with the clerk of the court of such county who shall securely keep the same so that the grand jury list entered and recorded therein as aforesaid shall not become known.” We are urged, upon the grounds that this is (1) a penal statute, (2) in derogation of personal rights, (3) in derogar tion of common-law procedure, and (-4) one creating a statutory criminal procedure, to construe this law strictly. But' rules of construction are at best only secondary aids. “A sentence, or form of words, can have but one true meaning. There can be no sound interpretation without good faith and common sense.” ) Lieber, Hermeneutics (Hammond’s ed.) 108, 109. “Ho display of critical ingenuity, no hollow pretense of conformity to established rules, can make an interpretation acceptable, if it evidently proceeds from any other motive than an honest desire to learn the true meaning of the test in question.” Id. 290. — 172 — Herein lies the weakness of ascertaining the meaning in the first instance by formal rules. To approach a sentence or writing* with a purpose of excluding from its meaning everything not covered by the express terms thereof, or by neces•sary-implication therefrom, is the mental attitude of the person predisposed to strict construction. To approach a sentence or writing with a purpose of including within its terms everything either covered by its words expressly or to which its provisions may by mental alertness or ingenuity be extended is' the mental attitude of the person predisposed to liberal or “equitable” construction. Heither is correct. Heither is impartial. We grant that after the statute is first considered from the viewpoint of good faith, common sense, and impartiality, and from this viewpoint some question arises with regard to the • inclusion or exclusion from its provisions of certain matters or things, this subordinate phase of interpretation may in some cases be determined upon a consideration of whether or not the statute is one of that class which the legislature is presumed not to have intended to- be extended by interpretation; and, for the purpose of ascertaining this, the rules of interpretation classifying statutes may be consulted with benefit. We use the terms “construction” and “interpretation” as synonymous. The futility of the general use of rules of interpretation is nowhere better illustrated than in that elaborate and learned treatise, Lewis’s Sutherland’s Statutory Construction (2d ed. vol. 2, pp. 1073, 1074), where the conclusion is reached that remedial statutes are liberally construed, and that remedial statutes include all those which remedy defects in the common law, or any part thereof, or remedy defects in any part of our civil jurisprudence generally. The author therefore hardly escapes from the conclusion that all statutes are to be liberally construed. In the same way, by application, of that oft-quoted rule that statutes in derogation of the common law are to be strictly construed, it is easy to' establish that all statutes — 173 — except those needless statutes declaratory of the common law should receive a strict construction. We shall approach the consideration of this statute, therefore, without either favor or hostility, neither leaning to strict nor to liberal construction, and only invoking rules of interpretation after doubts otherwise unsolvable arise. We consider first that the statute is a general law applicable to every county in the state. The circuit courts always have criminal jurisdiction in this state, whatever other courts may exist. Const, art. YII, sec. 8. The legislature may create municipal courts for a municipality or inferior courts for the county. Const. art. VII, sec. 2. “There shall be a clerk of the circuit court chosen in each county.” Const, art. VII, sec. 12. The statutes relating to municipal and inferior courts present quite a variety of regulations and conditions. In how many of them is there a “clerk of the court of such coimty ?” Certainly not in those which, while having a separate clerk, are limited in their jurisdiction to cities. If the circuit court has criminal jurisdiction, should there be two lists and two books kept ? The statute mentions only one. If we cannot find warrant in the law for two grand jury lists for a county, and we are confined to the question which clerk is more nearly within the above-quoted words, the clerk of the municipal or inferior court or the clerk of the circuit court, would we not ordinarily understand it to refer to the latter ? Why should we select the particular and inferior instead of the general and superior'? The third section of the act ill question — see. 2546b, Stats. (Supp. 1906; Laws of 1903, ch. 90, sec. 3) — contains words indicating that the list is to be used in selecting a grand jury for more than one court: “Whenever any court or judge thereof shall direct a grand jury to be summoned.” The grand jury is to be drawn in the presence of the commissioners and “the judge of the court ordering the grand jury.” The persons drawn shall be “the grand jury for said court.” We must hold that this statute — 174 — requires this list and book to beffiled with the clerk of the circuit court and that the proceedings in the case at bar were in this respect regular. Premising that the grand jury list was filed in the first instance with the proper officer, as required by statute, a consideration of other statutes upon the same subject matter leads to the conclusion that it must be removed" thence (in proper custody) to the office of the clerk of that inferior court in which the grand jury is to be drawn. The fact that this book and list remained in the office of the clerk of the municipal court from December, 1903, until after February, 1904, was an irregularity, it is true, but we are unable to see that any prejudice to the defendant resulted therefrom. /The stenographer which the grand jury is authorized to employ is required to “make and file an oath faithfully to report and transcribe all the proceedings before the said grand jury and to keep inviolate the secrecy required by law to be kept relative to such proceedings.” No designation of the place of filing or the person with whom the oath must be filed is found in the act. The oath must evidently be an affidavit in writing. It might with almost equal propriety be filed with the clerk of the court of which the grand jury at this stage of the proceedings has become a part, or with the clerk of the grand jury. The former would be more conducive to permanency, the latter to secrecy. We incline to the view that it should be filed with the clerk of the grand jury, as was done in this case. But any error in this respect could not have the effect of making the stenographer a disqualified person or an interloper among the grand jurors. State ex rel. Dithmar v. Bunnell, post, p. 198, 110 N. W. 177. Besides, here again no prejudice to the defendant resulted. “No indictment or information shall be deemed invalid nor shall the trial, judgment or other proceedings thereon be affected : ... by reason of any other defect or imperfection in matters of form which shall not tend to the urejudice of the defendant.” Sec. 4659, Stats. (1898). — 175 — “Mo indictment, information, process, return or other proceedings in a criminal case in the courts or course of justice shall be abated, quashed or reversed for any error or mistake where the person and the case may be rightly understood by the court, and the court may, on motion, order an amendment curing such defect.” Sec. 4706, Stats. (1898)-. These statutes are in the interest of the public and not unjust to the accused because they secure to him a trial on the merits, and they should be applied to and govern the decision of every criminal case,- making unavailing all exceptions except such as relate to rulings which the court can see, from the record returned, actually prejudiced the defendant in his -defense upon the merits. Francis E. Dewey, one of the petit jurors, examined as to his qualifications, testified that he did not know defendant, had formed or expressed no opinion as to defendant’s guilt or innocence, was conscious of no bias or prejudice against him, had no interest in the result of the trial, and knew of nothing to prevent him (Dewey) from deciding the case fairly and impartially according to evidence. He had, however, read of the case in the newspapers' about the time the indictment was returned, and from the fact that the grand jury returned an indictment against the defendant he would presume that there was more chance of defendant being guilty than some man against whom no indictment had been returned. This fact created a presumption in the juror’s mind that the defendant was possibly, not probably, guilty, but he would have the same impression if the defendant had been brought into court in the ordinary way after preliminary examination. He thought he could say, notwithstanding this, that his mind was absolutely free from all opinion as to the guilt or innocence of the defendant, for'this idea was not strong enough to be an opinion — it was but an impression. He thought that the defendant was more possibly guilty than a man against whom no indictment had been returned, and the fact of an indictment he considered some evidence that the defendant was pos — 176 — sibly guilty, but this impression could be easily removed by evidence to tbe contrary, and be knew it was not incumbent on tbe defendant to prove bis innocence, but that it was incumbent on the state to prove defendant guilty. lie said that it would require evidence to remove bis impression, but be could enter upon tbe trial with a mind absolutely free from any impression as to tbe guilt or innocence of defendant; that bis impression was very slight and could easily be removed, but be did not think a grand jury would indict an innocent man. He knew that a person charged with crime, even when indicted by a grand jury, is presumed to be innocent until tbe evidence shows him to be guilty beyond a reasonable doubt, and be could and would give tbe defendant tbe benefit of that presumption, and be bad not in bis mind any opinion, feeling, or impression that tbe defendant was probably guilty, but only that be was possibly guilty; that a man who bad been indicted by seventeen men was more likely to be guilty than a man who bad not been so indicted. Tbe juror was challenged for cause, and tbe challenge being overruled tbe defendant duly excepted. All such inquiries are necessarily somewhat metaphysical, but, as we understand tbe mental condition of this juror as described by himself, as 'between defendant and one against whom no indictment was found or legal charge made, there was a greater possibility or more likelihood of tbe defendant being guilty than there was of such other person being guilty. But with reference to tbe other question, of tbe guilt or innocence of defendant, be bad no preconceived opinion, no bias or prejudice, and understood and thought he could apply tbe presumption of innocence in defendant’s favor. Tbe distinction is very subtle, and we are glad to be relieved from passing upon its soundness. We bold that tbe metaphysical test applied to this juryman was not within tbe proper scope of an examination into bis qualifications and that tbe juryman was competent and qualified, without reference to these subtle distinctions which are much easier of utterance than of explanation. — 177 — The instructions requested by tbe defendant and refused by tbe court are not correct in law, and tbe subject thereof is much better covered in tbe charge given by tbe court. With reference to evidence of tbe good reputation of defendant tbe instructions requested were: “If you believe tbe testimony of tbe witnesses called who testified to tbe good reputation of tbe defendant as to bis honesty and integrity, such testimony may be in itself sufficient to raise in your minds a reasonable doubt as to bis guilt of tbe offense charged in tbe indictment, and if you entertain such doubt you must return a verdict of not guilty.” Tbe defendant bad no more right to have this evidence separately pointed out by tbe court to tbe jury as such which “may be in itself sufficient to raise a reasonable doubt” than be would have to take any other item of evidence from which an inference favorable to tbe defendant might be raised and call it separately to tbe attention of the jury with this particular comment, almost suggestion. Tbe charge of tbe court on this subject shows tbe proper way of presenting such matters to tbe jury by instruction. We quote it for precedent: “Testimony has been received as to tbe good reputation of tbe defendant for honesty and integrity previous to tbe time it is alleged be committed tbe offense charged in tbe indictment. Such testimony of good reputation should be considered by you in connection with all tbe other evidence in tbe case, and if after such consideration you entertain any reasonable doubt as to tbe guilt of tbe defendant, you must acquit him; but if from all tbe evidence in tbe case, including tbe testimony as to tbe good reputation of tbe defendant, you are satisfied of bis guilt beyond a reasonable doubt, then it is immaterial what bis reputation has heretofore been as to honesty and integrity.” Tbe instruction requested,, as follows, was not proper to be given, in that it directed, not merely permitted, tbe jury to disregard tbe testimony, and in that it limited tbe corroborating testimony to witnesses, thereby excluding circumstances — 178 — and documents, and in that it required corroboration by “witnesses.” It therefore was properly refused. “If from such testimony you are satisfied that the said witness has been impeached, or you have a reasonable doubt on account of such testimony as to> his credibility, you should disregard his testimony given in this case, except as to those parts, if any, in which such testimony has been corroborated by other credible witnesses.” It is next contended that because the jury accompanied their verdict of guilty with a recommendation of mercy, and immediately thereafter and before separating handed up to the trial judge a written request for leniency toward the defendant, we must presume that the verdict of guilty was a compromise verdict and must be set aside. This contention cannot be sustained. Verdicts of this kind were sustained in the following cases: Stephens v. State, 51 Ga. 236; State v. Potter, 15 Kan. 302; State v. Gill, 14 S. C. 410; People v. Lee, 17 Cal. 76; Hicks v. State, 25 Fla. 535, 6 South. 441; Penn v. State, 62 Miss. 450. We find no prejudicial error in this case, hence the judgment should be affirmed. By the Gouri. — The judgment of the municipal court is affirmed.