May 18, 1945. —
June 15, 1945.
APPEAL from a judgment of the circuit court for Eau Claire county: CARL H. DALEY, Circuit Judge, Presiding. Affirmed.
F. E. Yates, attorney, and F. V. McManamy of counsel, both of Eau Claire, for the appellant.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, and Henry E. Steinbring, district attorney of Eau Claire county, and oral argument by Mr. Platz.
Peter Bachmeyer, alias Fred Meyers, alias Fred Bachmeyer, alias Peter Fodhl, appellant, hereinafter referred to as "defendant," together with Ralph Green, was charged with aiding in the commission of a felony, to wit, murder in the first degree on the 20th day of March, 1938, in the city of Eau Claire, by aiding Jack LaPean in the murder of Ray Robeson. The information also charged the defendant, Peter Bachmeyer, with seven previous sentences unreversed of record. At the close of the trial, the state dismissed the action against Ralph Green, and he was discharged. June 22, 1944, the jury found defendant guilty, and he was sentenced to life imprisonment in the state's prison at Waupun. Defendant appeals.
About 8:45 in the evening, standard time, on March 20, 1938, Ray Robeson was shot while on his way from the garage to the house in which he lived, from which injury he died on the 22d day of March, 1938. The distance from the garage where Robeson kept his car to the house is between one hundred fifty and two hundred feet. Both were on the west side of Ninth avenue in the city of Eau Claire. The house was north of the garage. Peter Bachmeyer lived with Ralph Green and his family in a house across the street, about midway between the garage where Robeson kept his car and the house in which he lived. The Green home faced Niagara street and was on a corner lot. The west end of Niagara street is opposite the home in which Robeson lived.
Elizabeth Green, daughter of defendant, and wife of Ralph Green at the time the crime was committed, but later divorced, testified that John LaPean came to their home quite regularly to visit defendant; that on the 26th day of February, 1938, she and her husband were at Kohlhepp's grocery near their residence, and while they were there Ray Robeson cashed a check and received a roll of bills. When they returned to their home, LaPean and defendant were there, and Ralph Green told them about seeing a man in the grocery store who had a roll of bills "big enough to choke a horse." LaPean commented that "A guy like that shouldn't run loose," to which defendant agreed. March 18, 1938, defendant asked his daughter, Mrs. Green, for a bar of soap, and when asked what he intended to use it for, stated that he intended to make a blackjack, and showed her how it could be placed in a sock and used for that purpose. She inquired whether it would kill a person. He stated it would merely "knock him cold."
About noon March 20, 1938, LaPean came to the Green home and talked with defendant, and returned about 6:30 that same evening, after which they went into defendant's bedroom. When they came out defendant had the blackjack, which he had showed the witness two days before, in his hand. LaPean said, "This is the night Mr. Robeson gets it." They left the house and entered LaPean's car, which the witness had seen many times prior to that time, returning around 8 o'clock and parking the car facing east on Niagara street. They parked there for a short time and then drove away. Returning a little later in the evening they parked their car on Ninth avenue, facing north, opposite the Robeson garage. The witness testified there was a floodlight on an oil station which, together with the street light, furnished sufficient light so that she could recognize the car, and while they were sitting there defendant got out of the car, opposite the driver's seat, and walked toward Water street on Ninth avenue. The witness recognized him by his way of walking and the clothing he had on. A few minutes later he came back and got into the car. Shortly after that Ray Robeson's car stopped at the corner to let someone out, and then turned south, went as far as the garage, and turned in there. A man got out of the car, opened the garage doors, and was recognized as Ray Robeson while he was standing in the light of the car. He returned to his car and drove into the garage. He came out of the garage, closed the doors and started walking north on Ninth avenue. Just then LaPean, whose car was parked across the street from the garage, ran across the street toward Robeson. He met Robeson in front of the house next to the garage, where there was a scuffle and an explosion, which sounded like a shot. LaPean ran to his car, got in and drove away, making a "U" turn on Ninth avenue. Defendant came home about twenty minutes afterward, removed his clothing and got into bed. Mrs. Green went into the bedroom and inquired what they had done. Defendant said to her, "He wasn't supposed to shoot him; he was only supposed to hit him over the head," and when she said there would be trouble now, defendant said, "No, not if you will keep your damn mouth shut." When she went into defendant's bedroom he handed her a revolver and directed her to hide it, as he expected the officers to search his room. He theatened [threatened] her if she talked, and she was afraid of him, as he had choked her on previous occasions.
Kohlhepp, proprietor of the grocery store, testified that he cashed checks for Robeson; that he paid him in bills of small denominations. Another witness testified that he observed a car opposite the Robeson garage with two people in it, whom he did not recognize, and a defense witness saw the car drive away after making a "U" turn following the shooting.
Defendant was arraigned June 19, 1944, and pleaded the statute of limitations, sec. 353.21, Stats., which provides as follows:
" Limitation as to other felonies. Any prosecution for an offense which may be punished by imprisonment in the state prison, except murder, must be commenced within six years after the commission thereof unless otherwise provided by law."
The information charged the defendant with aiding in the commission of the offense of murder in the first degree on the 20th day of March, 1938, in violation of sec. 353.05, Stats., which section is as follows:
" Accessory to felony. Every person who shall be aiding in the commission of any offense which shall be a felony or who shall be accessory thereto before the fact by counseling, hiring or otherwise procuring such felony to be committed, shall be punished in the same manner as is, or shall be, prescribed for the punishment of the principal felon."
Defendant contends that he is charged as an accessory before the fact of first-degree murder, while the state contends that he is a principal and not an accessory to the murder of Robeson. We are unable to agree with defendant's contention, as an accessory is never present at the commission of the felony. While the statute in question refers to an accessory to a felony, punishment is specifically provided for any person who shall aid in the commission of an offense which shall be a felony, and also provides for the punishment of a person who is an accessory. An aider is one who is actually or constructively present at the commission of the offense, and it is well established that such a person is a principal. Vogel v. State (1909), 138 Wis. 315, 330, 119 N.W. 190; State v. DeHart (1943), 242 Wis. 562, 568, 569, 8 N.W.2d 360; State v. Maas (1944), 246 Wis. 159, 160, 16 N.W.2d 406.
That defendant is guilty of the offense of murder in the first degree is shown by the evidence. He and Jack LaPean conspired to rob Ray Robeson of his money. Both men went to the place of the crime together, and while LaPean actually did the shooting, it was all done pursuant to a conspiracy between them. The shooting occurred in the course of and as a foreseeable incidental consequence of the holdup. This makes the defendant guilty of the same offense as LaPean, and in order to find defendant guilty it was necessary for the jury first to find LaPean guilty of murder in the first degree. In Pollack v. State (1934), 215 Wis. 200, 211, 253 N.W. 560, 254 N.W. 471, it is held:
"No principle of law is better established than that where several parties conspire or combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in the prosecution of the common design, the act of each one of the conspirators being, in contemplation of law, the act of each and all." See also Miller v. State (1870), 25 Wis. 384; 12 C. J. p. 577, sec. 86, and cases cited; 45 L.R.A. (N.S.) 55; State v. Henger (1936), 220 Wis. 410, 264 N.W. 922.
Sec. 353.20, Stats., provides:
" Murder, no limitation. An indictment or information for the crime of murder may be found or filed at any time after the death of the person alleged to have been killed."
It follows that the prosecution of defendant under sec. 353.05, Stats., is not barred by any statute of limitations.
Questions 3 and 4 of defendant's brief question the sufficiency of the evidence to sustain the conviction. They do not argue these points in the brief, and the weight to be given to the evidence was a question of fact for the jury. The testimony of an eyewitness, which is corroborated in part, if believed by the jury, is ample to support the conviction.
Questions 5 and 6 of defendant's brief raise the question generally that the court erred in excluding evidence offered by the defendant and in admitting evidence over defendant's objection. This is not followed by pointing out in the brief any specific error, and in examining the record we find none.
Defendant claims that he was prejudiced when the special prosecutor, in his argument to the jury, said: "The defense haven't shown anything to prove his innocence." Counsel for the defendant immediately objected, and stated it was not the duty of the defendant to prove his innocence. Defendant did not take the stand in his own defense, which was his privilege, and while the district attorney cannot comment on this fact to the jury, it is proper to point out generally that no evidence has been introduced to show the defendant to be innocent. Lam Yee v. State (1907), 132 Wis. 527, 531, 112 N.W. 425; Werner v. State (1926), 189 Wis. 26, 40, 41, 206 N.W. 898; State v. Johnson (1936), 221 Wis. 444, 455, 456, 267 N.W. 14.
The court instructed the jury as to the presumption of innocence of the defendant, and the proof necessary on the part of the state to convict the defendant. It is considered that the remark was not prejudicial.
Defendant questions whether the information was sufficient to charge him with having committed a crime. The information charges that "Peter Bachmeyer . . . on the 20th day of March, A.D. 1938, at the city of Eau Claire in said county of Eau Claire and state of Wisconsin, did aid, in the commission of an offense which was a felony, to wit, murder in the first degree, as defined by section 340.02 of the Wisconsin Statutes, contrary to section 353.05 of the Wisconsin Statutes, and against the peace and dignity of the state of Wisconsin."
While we do not fully approve of the manner in which the offense is charged, counsel for the defendant made no objection at the time defendant was arraigned. It was necessary to do this to avoid it being waived. Sec. 355.09, Stats., provides:
" Technical pleas; waiver of jeopardy. Any objection to a prosecution or the sufficiency of an indictment or information that may be raised by motion to quash, demurrer, plea in abatement, or special plea in bar, shall be so raised before a jury is impaneled or testimony taken, and unless so raised, shall be deemed waived. . . ."
While the court may, in its discretion, entertain an objection at a later time during the trial, defendant makes no claim that he did not understand the crime that he was charged with. Sec. 355.23, Stats., provides that no indictment or information shall be deemed invalid by reason of any defect or imperfection in the matters of form which shall not tend to the prejudice of the defendant. Defendant was charged with having aided in the commission of the offense of murder in the first degree, as defined in sec. 340.02. This necessarily carried with it all of the elements of the offense charged under said section, and the information also set forth the section under which the defendant was being prosecuted. It is considered that the defendant was not prejudiced by the information under which he was prosecuted.
By the Court. — Judgment affirmed.