#### Tarasinski, Plaintiff in error, vs. The State, Defendant in error.

*May 5*—

June *1, 1911.*

*Criminal law: Homicide: Trying accused l>otTi as principal and as accessory: Degrees: Confession Toy codefendant: Competency: Appeal and error: Review.*

1. An information for murder may charge a defendant in one count as principal and in another as accessory, joining other defendants, and he may be required to plead to both counts and may he tried on both at the same time.

2. Where in an information two persons were jointly charged with murder in the first degree and also charged as accessories to *509the same offense, and one was permitted to plead guilty of murder in the third degree, *it seems*there was no error in trying the other as accessory to the crime in the higher degree; but if there was error it was immaterial where the conviction was-as principal, not as an accessory.

3. Where a defendant is charged with having, in combination with others, committed murder, and the evidence tends to prove that the crime was committed pursuant to such combination, a confession by a co-conspirator, incriminating such defendant, is-not incompetent merely because made while the person confessing was restrained of his liberty and in response to questions by the officers having him in charge and not in the presence of any one to protect him from being unduly influenced.

4. Where such a confession was clearly influenced by fear, favor, or the promise of reward it is not admissible; but where there are-reasonable conflicting inferences in that regard, the evidence may be admitted, leaving it to the jury to draw the proper inference and to give heed to or reject the confession accordingly.

5. The ruling of the trial court on the competency of such evidence is not to be disturbed unless manifestly wrong.

6. Admission as against one conspirator of a confession made by another after the fact and not in the presence of and assented to by the former, was not in this case a prejudicial error, especially since there was no assignment of error on that ground.

Ekro-k to review a judgment of tbe municipal court of Milwaukee county: A. C. Beazee, Judge.

*Affirmed.*

Plaintiff in error was informed against as a principal and also as an accessory in tbe murder of Dominic Gapinski, wbicb occurred in Milwaukee county, Wisconsin, April 3, 1908.

Three others were informed against as guilty jointly with tbe accused. One was allowed to plead guilty of tbe offense of murder in tbe second degree and another of tbe offense of murder in tbe third degree. Thereafter on issue joined by pleas of not guilty plaintiff in error and a fourth defendant were tried in due form and convicted of murder in tbe second degree. Sentences were pronounced and judgments rendered accordingly, tbe questions suggested in tbe opinion being severally saved for review on writ of error to this court.

*510
      *W. J.*Kershaw, for tibe plaintiff in error.

For the defendant in error there was a brief by the *Attorney General*and *Winfred G.*Zabeldistrict attorney, and oral .argument by *Mr. Zabel.*

Massiiaix, J.

This cause is one of highest importance, as .all capital cases are. Nevertheless, unlike most of such cases, the questions presented for decision are very few and quite simple. They are not such as call for any extended discussion or for giving in detail a history of the homicide in order to show precisely how such questions arose. A mere statement of such questions will sufficiently suggest the particular phases of the controversy to which they apply. That course seems advisable, thus rendering a brief opinion adequate for the case.

Is it proper under the Code of Procedure to charge a person in one count in an information of having been the principal in the commission of a homicidal offense, and in a second of having been an accessory, joining others, supposed to have been participants in committing such offense, require such person to plead- to both counts, try him upon the issue raised by a plea of not guilty as to each charge, and submit the ■cause to the jury on both issues ?

Counsel for plaintiff in error seems to mainly rely on maintaining the negative of the stated proposition. It is not new. It is ruled in the affirmative by *Miller v. State, 25*Wis. 384, 386, which seems to have been overlooked by counsel on both sides. We cannot do better than, with slight changes, quote from the opinion in that case treating the precise point before us:

> “It was allowable to insert several counts in the indictment, solely for the purpose of meeting the evidence as it might transpire on the trial. Put the charges all related essentially to the same transaction, to the same killing; and whether it should appear that the defendant gave the mortal blow or voluntarily aided and abetted ... in giving it was not material, since, if” the accused “was found guilty upon either *511■count, it would be sufficient to support the indictment. But it was .proper to insert these different counts to meet every possible state of the evidence adduced; and the defendant could not have been prejudiced by the refusal of the court to ■compel the prosecuting officer to elect on which count he would proceed. It is very clear that the offense with which the defendant was charged was the murder of” Dominic Gapinsld, “and none other. And there is as little ground for saying that the court erred in receiving evidence against the defendant generally, upon” both “counts in the indictment. Eor, as already observed,” both “counts charged only one crime; and Avhether the evidence showed the defendant was the principal perpetrator, or voluntarily aided ... in giving the mortal blow, is immaterial, since in either case it would, in law, be the murder of each.”

Thus this court in response to the letter of the Code, sec. 2829, Stats. (1898), and in harmony with the dominating ■spirit of the reformed procedure, turned from the technical rules which formerly interfered with the administration of justice and which still prejudicially influence or dominate some jurisdictions as sufficiently appears by authorities upon which counsel for plaintiff in error relies. It is refreshing to thus turn to decisions made here more than forty years ago and observe the high appreciation the court then had of the system which justifies as well as demands domination of the practical and substantial regardless of the technical .and inconsequential. It was in pretty close connection with the decision quoted from that the court most significantly dignified the statute and the liberal spirit of the Code, by characterizing the particular provision as “a beneficent statute.” *Decker v. Trilling,*24 Wis. 610.

Where two persons are jointly informed against as having committed the offense of murder in the first degree and also as having been accessories to the same offense in such degree, and one is permitted to plead guilty of having committed the offense in the third degree, may the other properly be tried as an accessory as to the crime in a higher degree ?

It is not perceived how the plea of guilty, in such cireum-*512stances as stated, could logically foreclose the state from establishing by evidence guilt of a higher degree as to the co-defendant. No authority, elementary or otherwise, is cited to sustain the contrary. Moreover, the accused in this case was not convicted as an accessory. That phase of the case-dropped out in the result. Therefore, it seems, the objection that the accused should not have been tried as an accessory in a higher degree than the third is beside the case. Since it was proper to try him as accessory and principal at the same time, each offense being separately charged, and the conviction was as principal, whether the trial, technically, should have been for being an accessory in the third degree, if an-accessory at all, is immaterial. Logically, it seems the assignment of error at this point should -have been for trying the accused, under the circumstances, of any homicidal offense greater than that of murder in the third degree. But if such were the assignment it would meet the same fate for there is no good reason, it is considered, why the plea of guilty in one degree by one chargeable with another of a homicidal offense should preclude establishing by evidence guilt of such-other in a higher degree.

A person being charged, in combination, with others of having committed a homicidal offense and evidence having been produced on his trial, tending to prove that the offense was-committed pursuant to such combination, is evidence competent, incriminating such person, of a confession by a co-conspirator while restrained of his liberty, made in response to-questions put to him by an officer having him in charge and not in the presence of any one to protect him from being unduly influenced ?

The proposition stated, in general, fits a phase of the trial in question so far as the undisputed evidence goes. All other-evidence of undue influence going to show that the incriminating disclosures were not freely and voluntarily made was-controverted, so what the real facts were was a jury question. *513Obviously, the mere fact that the confession was made during an examination by the officer while the confessor was at somewhat of a disadvantage, in that he had no advisor or disinterested person at hand, assuming that the officer and his associates were prejudiced in the matter, did not render the confession necessarily inadmissible. On this branch the question presented was whether, under the circumstances, it was fair to believe the confession was made freely and voluntarily. If there was room in the evidence for the jury to come to that conclusion, it was proper to admit the evidence. That is elementary. True, if a confession is clearly induced by fear, favor, or the promise of reward evidence of it is not admissible. - It is not incompetent merely because there is room for a reasonable conclusion that it was so induced. If there are reasonable conflicting inferences in that regard from all the circumstances, that being a judicial question, the evidence is competent, leaving it to the jury to give heed thereto or reject it in their deliberations according as they may find the proper inference. Thus it will be readily seen, as in the field of competency ordinarily, there is a wide field for operation of judgment on the primary question. Moreover, that is a question of fact. So-, as has often been said, the determination of it by a trial court is not disturbable unless manifestly wrong. *Roszczyniala v. State,*125 Wis. 414, 104 N. W. 113. We are unable to conclude that the determination was wrong in this case. The mere fact that the confession was elicited in an examination by the officer while he had the accused person in confinement and under the circumstances indicated, is not conclusive that it was not freely and voluntarily given. As the court has before said, a confession may be voluntary and not be volunteered. A confession need not be offered in order to be freely and voluntarily given and render evidence of it competent. In any case, if, under all the circumstances, there are reasonable inferences as to whether the confession was secured for a consideration of some kind— *514given, promised, or reasonably expected — because of tbe conduct of those obtaining’ tbe disclosures — induced thereby or given under such compulsion that tbe confessor was not a free agent in tbe matter, but gave tbe confession under duress and tbe trial judge so concludes be may properly let tbe evidence go to tbe jury. Without going into' details as to tbe circumstances of tbe confession in question it seems that there was no such clear error, if error at all, in deciding tbe question of competency as to warrant sustaining the assignment of error.

No question seems to be raised as to tbe time of tbe confession, in that it was after consummation of tbe conspiracy. Of course, where two or more persons concert together to commit an offense and commit it pursuant thereto, a confession by one after tbe fact, not in presence of and assented to', actually or impliedly, by tbe other, is not admissible against him if properly objected to. *Miller v. State,*139 Wis. 57, 88, 119 N. W. 850. However, there are circumstances in this case rendering admission of tbe evidence of tbe incriminating confession nonprejudicial under that rule, especially since no assignment of error is made which reaches tbe subject or is discussed in the brief of counsel.

Tbe further claim is made that tbe verdict is contrary to tbe evidence. On this it seems tbe jury might reasonably have come to tbe conclusion complained of, which is sufficient for tbe point in favor of tbe state, even if it were thought that they might reasonably have come to a different conclusion.

*By the Gowrt.*— Tbe judgment is affirmed.