Opinion
September 17, 1948. —
October 12, 1948.
ERROR to review a judgment of the municipal court of Rock county: CHESTER H. CHRISTENSEN, Judge, Presiding. Reversed and remanded.
Chester J. Niebler of Milwaukee, for the plaintiff in error.
For the defendant in error there was a brief by the Attorney General, William A. Platz, assistant attorney general, and Robert D. Daniel, district attorney of Rock county, and oral argument by Mr. Platz, Mr. Daniel, and Mr. Frank Kinast, assistant district attorney.
Writ of error to review a judgment of conviction and sentence thereon of plaintiff in error, Robert W. Palmer, for assault and battery in violation of sec. 340.57, Stats., under a warrant issued March 1, 1947, charging assault with intent to do great bodily harm under sec. 340.41. Judgment was entered on March 19, 1948.
The testimony of the complaining witness at the preliminary examination in this case is as follows: On February 15, 1947, the complaining witness, a girl eighteen years old, left a movie house in Janesville at about 10:45 p.m. She proceeded to River street, a public highway running in a north and south direction, to visit a girl friend. As she was walking in a southerly direction on the east side of River street she noticed plaintiff in error (who will hereinafter be referred to as "defendant") on the west side of the street, almost in front of the county jail and sheriff's office which was lighted and open. The house to which she was going was on the west side of the street, a short distance south of the county jail. When she was opposite this residence she crossed to the west side of the street. The lights of the house went out just after she reached the west sidewalk. She started to walk north on the west side of the street. After she walked a little way she noticed defendant about one hundred feet behind her and in front of the residence to which she had intended to go. By the time she had arrived in front of the sheriff's office she knew she was being followed and she crossed the street to the east side in front of a driveway immediately opposite the county jail. Defendant also crossed the street. He walked up to plaintiff, grabbed her right shoulder, and asked her where she lived and where she was going. She refused to answer. Defendant got behind her, put one hand over her mouth, and held both of her hands with his free hand. He then pushed her into the alley and told her to keep quiet. She fell down and he fell down to the left of her. He took a white handkerchief from his pocket and attempted to get it around her throat, still having his hand over her mouth. A deputy sheriff from across the street approached the scene and defendant disappeared.
After defendant's arrest there was a preliminary examination before Hon. G. H. MURWIN, municipal judge, on April 15, 1947, and following a plea of not guilty by reason of insanity the district attorney requested the appointment by the court of two doctors to examine defendant. Their finding was that he was presently sane but had been suffering from petit mal. On August 20th proceedings were had before Municipal Judge ERNEST P. AGNEW, who substituted another doctor in place of one of the doctors who had made the earlier report. Two doctors had been engaged by defendant and on August 20, 1947, a joint report was filed by the four doctors and their finding was that defendant was mentally irresponsible on the date of the crime and that he was sane at the time of the report.
He had received medical treatment since the events which caused the prosecution. Thereafter, Hon. RALPH F. GUNN had become municipal judge but he disqualified himself to hear the matter and referred the matter to. Hon. CHESTER H. CHRISTENSEN, municipal judge of the Beloit branch. After conferences between defense counsel and district attorney defendant withdrew his plea of not guilty by reason of insanity and substituted a plea of not guilty. A jury was waived and by stipulation the matter was submitted upon the transcript of testimony taken at the preliminary examination. The joint medical report, due to the withdrawal of the insanity plea, was not before the trial court. The court found defendant guilty of assault and battery and imposed a maximum sentence of six months in the county jail.
Defendant contends that it was an abuse of discretion on the part of the trial court to permit withdrawal of a plea of not guilty by reason of insanity because the judge who tried the case had no knowledge of the facts except such as was furnished by a transcript of the preliminary examination which consisted principally of evidence by the complaining witness, and that therefore the trial court had no basis for coming to a judgment whether the plea should be permitted to be withdrawn. It is also claimed that a jury having been waived the trial court acted as a jury and as such operated under the mistaken view that the uncorroborated story of the complaining witness must be accepted as true.
We find no specific error in this record. Everything that was done before the trial court was by stipulation between counsel and although there was a plea of not guilty no attempt was made by defendant to contradict the testimony on the preliminary examination. We have, however, after a careful consideration of the rather unusual history of this prosecution, determined to order a discretionary reversal under sec. 251.09, Stats.
The trial court which sentenced defendant heard no testimony and knew nothing of the report by the four doctors that defendant was legally irresponsible at the time of the crime. This evidence was technically immaterial after the withdrawal of the plea of insanity. It was unsworn and was in the form of a bare conclusion without the disclosure of details. Further than this, it had not been subjected to the test of cross-examination. Nevertheless, being the unanimous determination by doctors appointed both by the state and the defense it should, if it had been brought to the attention of the trial court, have aroused concern and inquiry over permitting withdrawal of the plea of insanity, and in any case, would suggest further inquiry to fix the proper penalty. We are persuaded that such an inquiry would have been made had a single judge presided in this matter. For all we know such an inquiry might have disclosed that the withdrawal of the plea was not improvident and under the peculiar circumstances we cannot say that there was error in not ordering such an inquiry. However, the situation arouses our grave concern. We are persuaded that there is strong likelihood that justice may have miscarried and conclude that the case should be retried. The state should be permitted to file such amendment to the information as it may deem proper and defendant to plead to the original or amended information.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial in accordance with this opinion.
MARTIN, J., took no part.