Novkovic v. State

Baeetes, J. The defendant moved for a separate trial, which motion was denied. At the close of the state’s evidence the defendant asked that the court instruct the jury that the statements made by Mravic before the chief of police and the coroner were binding on him only. This request was denied. The defendant later asked that the jury be instructed that the — 670 — confessions of Mravic were binding on him only, unless they were satisfied beyond a reasonable doubt that the defendant Novhovic assented thereto, and that unless they were so satisfied they should dismiss the confessions from their minds as. to her and return a verdict of not guilty, unless they were satisfied by other evidence beyond a reasonable doubt that she was guilty. The court instructed the jury that the statements of Mravic were not binding on his codefendant and could not “be considered against her unless you are satisfied beyond a reasonable doubt that said Ma/rie Novhovic assented to such statements actually or impliedly.” The errors assigned and argued are that the court was wrong (1) in refusing to grant Mrs. Novhovic a separate trial; (2) in permitting the jury to consider the confessions, of Mravic as evidence against her; (3) in charging the jury; (4) in excluding competent evidence; (5) in not discharging the defendant Novhovic; and (6) in refusing a new trial, and in denying said defendant’s motion in arrest of judgment. The reasons assigned for granting a separate trial to Mrs. Novhovic were set forth in an affidavit which she filed in support of the motion, and were two in number. First, because she desired to call her codefendant as a witness in her behalf;. and, second, because the confessions of Mravic which were competent evidence against him were not so as against her and would be highly prejudicial to her if permitted to go before the jury which tried her. The right of two or more defendants jointly informed against to have separate trials is discussed in Emery v. State, 101 Wis. 627, 638, 78 N. W. 145. It is there said: “Where persons are so circumstanced as to be properly triable together for a criminal offense, separate trials are not de-mandable as of right, except it be shown that a joint trial will so clearly be seriously prejudicial to one of the parties as to require a separate trial as to him to prevent injustice. The refusing or granting of such a motion is wholly within the dis — 671 — cretion of the trial court, and its exercise, as in other eases of the exercise of discretionary power, cannot be successfully questioned except for a plain abuse of it. That was the rule at common law, and though it has been changed in many jurisdictions by statute, it has not been changed in this state.” In discussing the right of one defendant to have the benefit of the testimony of the wife of a codefendant, the court further said: “It may well be said, when the testimony of the wife of one defendant is material and reasonably necessary to the defense of a codefendant, that a severance should be granted on motion of the person seeking to obtain the benefit of such testimony, and that a denial of it is the denial of a right, because a fair exercise of judicial discretion would result in granting it; but in the absence of a clear showing that the evidence of the wife in the circumstances stated is necessary and material to the defense of a codefendant, the motion for a severance may properly be denied.” We do not think the trial court abused its discretion in refusing to grant a separate trial as to the defendant Novlcovic because of her claim that Mravic was a material witness in her behalf and that she desired to use his testimony. Mravic had made two confessions,' one of which was under oath, and in both of them he strongly implicated his codefendant. There was no showing that he had experienced a change of heart or that he would tell any different story, except a statement on information and belief made by Mrs. Novkovic in her affidavit. It was not shown that Mravic had ever made any statements different from those contained in his confessions or that he was willing to do so if called as a witness. As a matter of fact he declined to take the stand. Neither did the affidavit disclose the facts which plaintiff in error expected to prove by Mravic. All the court had before it was her mere conclusion, made on information and belief, that she could prove by Mravic that she was not guilty. We think the plaint — 672 — iff in error failed to make any sufficient showing that she was prejudiced by reason of being unable to use her codefendant as a witness. The second point urged is that the confessions of Mravic, being competent testimony against him, were of such a nature as to be necessarily prejudicial to Mrs. Novlcovic, and that a separate trial should have been granted for this reason. If these confessions were proper to go before the jury in case she was tried separately, no prejudice could result from trying her jointly with her codefendant. The trial court refused ■to charge the jury that Mravic’s confessions were binding on him only and could not be considered in determining the guilt of his codefendant. This refusal is also assigned as error, and these two assignments will be considered together. On behalf of the state it is contended that the confessions of Mravic were competent evidence against his codefendant on two grounds: Eirst, because the defendants were co-conspirators and the declarations of one were admissible against the other; and, second, because the defendant Novlcovic admitted the truth of the statements made by her codefendant, and in effect made his admissions hers. It is clear that the first ground is not well taken. Wheie the design of a conspiracy is accomplished, no one of the conspirators by any act or declaration is permitted to affect the others engaged in it. Miller v. State, 139 Wis. 57, 88, 119 N. W. 850, and cases cited. ' The trial court evidently was of the opinion that there had been prima-facie proof that Mrs. Novlcovic had admitted the truth of Mravic’s confessions and thus made them her own. If this view was correct, such confessions were competent evidence against her. We are unable to find any evidence in the record which shows that Mrs. Novlcovic admitted that the statement made by Mravic before the chief of police was true in its entirety. We think the evidence is to the contrary. If Mravic’s state — 673 — ment before tbe coroner was competent evidence against bis codefendant, sbe was not prejudiced by tbe admission of tbe first confession, because there was no material difference between tbe two. Tbe first confession went more into detail than tbe second, but tbe latter showed, if true, that tbe defendants bad been criminally intimate before and after tbe murder; that Mrs. Novkovic bad solicited her codefendant to kill her husband, and that on tbe night of tbe murder sbe suggested what sbe thought was tbe appropriate time for doing tbe act. These were tbe essential points covered by tbe first confession that tended to establish Mrs. Novkovic's guilt. We have bad some difficulty in satisfying ourselves that tbe evidence was sufficient to show prima facie that Mrs. Nov-kovic admitted tbe truth of tbe confession of Mravic before tbe coroner. Tbe interpreter was not very familiar with tbe English language, and, while some of bis evidence strongly tends to show such an admission, there is a good deal of it that is badly confused. Tbe trial court bad tbe benefit of seeing this witness on tbe stand, and it may be that what be intended to testify to was more apparent to one who listened to him than it is to one who must get bis information from reading tbe interpreter’s narrative. On tbe whole we are unable to say that tbe court was wrong in permitting tbe confessions of Mravic to be considered as evidence against bis codefendant, particularly inasmuch as tbe jury was informed that tbe confessions must be disregarded as to Mrs. Novkovic unless tbe jury was satisfied beyond a reasonable doubt that sbe admitted their truth. Tbe court gave tbe following instructions to tbe jury: “(2) In order that tbe statements and acts of tbe alleged conspirators in tbe execution of tbe common purpose can be properly considered on tbe question of tbe guilt or innocence of tbe accused, it is essential that tbe jury must first be satisfied by tbe evidence beyond a reasonable doubt that a conspiracy in fact existed between tbe said two defendants to kill and murder Steve Novkovic at tbe time and place charged.” — 674 — “(1) You are also instructed that the evidence of an accomplice is competent evidence in a criminal case upon which to base a verdict of guilty, provided it is of such a character, taken in connection with all the other evidence in the case, as to satisfy you of the guilt of the defendant beyond a reasonable doubt, but you should examine such evidence with the utmost care and caution, scrutinize it closely and weigh it in the light of all the attendant circumstances as shown by the whole evidence, and you should not base a verdict of guilty upon it alone unless after such scrutiny it satisfies you of the guilt of Marie Novhovic beyond a reasonable doubt.” The first of these instructions was wrong as applied to the facts in this case, under the decision in Miller v. State, 139 Wis. 57, 119 N. W. 850. The second would have been correct had Mravic testified as a witness on the trial. Not having testified, the instruction could only relate to the confessions which he made. These instructions standing alone might lead the jury to believe that the confessions of Mravic, if he were either a co-conspirator with his codefendant or an accomplice of hers, would be evidence properly admissible against her to establish her guilt. These instructions were general in form and did not direct the attention of the jury to any specific evidence in the case, and we think in view of the following instruction dealing directly with Mravic’s confessions they did not prejudice the defendant: “Certain statements made by the defendant Pajo Mravic having been admitted in evidence in this regard, you are instructed that they are not binding upon Mcurie Novhovic unless you are satisfied beyond a reasonable doubt that she acquiesced in them. The statements or confessions are binding only on the one making them unless assented to so as to become binding upon the other, and in passing upon this question you will give the defendant Marie Novhovic the benefit of any reasonable doubt you may have, and then if you are not satisfied that she assented to the statements made by Pajo Mravic before the chief of police and at the coroner’s inquest you ought to dismiss them from your minds so far as the defendant Marie Novhovic is concerned and find her not guilty — 675 — unless the remaining evidence satisfies you beyond a reasonable doubt that she is guilty of murder in the first degree.” Error is assigned because the court refused to give the fpl-lowing instruction: “You are instructed that the concealment of a commission of a crime by telling a false story does not constitute the defendant Marie Novkovic a principal, nor does the fact of her being present, and you are instructed that merely being present and failing to endeavor to prevent a homicide, if such be the case, does not render her a principal.” It does not appear that any claim was made that the defendant’s guilt would be established by proving that she concealed the crime and that she was present when it was committed. These were evidentiary matters which tended to establish her guilt and which might be properly considered by the jury in connection with other facts and circumstances. It is not necessary that a court should take up the-different items of evidence relied on to establish the guilt of an accused person and say as to each particular item that it is insufficient in itself to prove guilt. Error is also assigned because the court refused to give the following requested instruction: “The defendant Marie Novkovic claims that she was not a party to the crime and that the sole responsibility of this homicide rests upon Pajo Mravic. She, is entitled to the benefit of a reasonable doubt. You cannot find her guilty under this information of being an accessory before the fact. That charge has been withdrawn and the only offense here charged is murder in the first degree, and if you are not satisfied beyond a reasonable doubt that she was an active participant in the design and doing her part at the time in its furtherance, then, and in that event, you ought to find her not guilty.” The point made on the refusal to give this charge is that the defendant was entitled to have the jury instructed that she could not be convicted unless they were satisfied beyond — 676 — a reasonable doubt that sbe was an active participant in tbe design to kill her husband and was doing her part at the time of the murder to further the commission of the crime. The instruction was misleading, in that the jury might infer therefrom that the defendant could not be convicted unless she assisted Mravic while he was delivering the blows that resulted in her husband’s death. The court gave a substantially correct instruction covering the matter. After telling the jury what they must be satisfied of before convicting Mravic, the court proceeds: “The next question for you to determine with reference to the defendant Marie Novkovic is, Was there in fact a conspiracy? Was she a member of such conspiracy? Did she conspire and confederate with her co defendant to commit or bring about such killing ?” “If you find from the evidence beyond a reasonable doubt that at the time and place charged the conspiracy mentioned in fact existed and that she, Mane Novkovic, was a member of such conspiracy and that she did in the language of the law conspire, confederate, and agree with said Pajo Mravic to commit said murder, then it will be your duty to find her guilty of murder in the first degree.” “Should you, however, entertain a reasonable doubt or fail to find beyond a reasonable doubt that a conspiracy in fact existed and that the -said Marie Novkovic conspired, agreed, understood, combined, and confederated with said Pajo Mra-vic to commit said murder, then you will find the defendant Marie Novkovic not guilty.” There were found in Mravie’s trunk two receipts, one for a ticket for the transportation of a Mrs. Mravic to this country, and another relating to the transportation of baggage, one being dated July 5, 1911, and the other on the day following. The defendant offered these papers in evidence and they were ruled out as immaterial. Error is assigned on this ruling. If they had any bearing on the case, it was so remote that no error was committed in rejecting the evidence. By the Gowrt. — The judgment of the municipal court of Milwaukee county is affirmed.