#### Rothbauer vs. The State.

Criminal Actions: *Bill of exceptions signed by fudge after term*— What *declaration of juror should prevent reception of verdict*

1. when a party convicted in a criminal action seeks a review by appeal or writ of error, his bill of exceptions may be signed by the judge *after*the term, with the consent of the district attorney.

2. It is error to receive (against objection) a verdict of guilty in a criminal action, where one of the jurors declares, upon the jury being polled, that he assented to the verdict for the sake of an agreement, but does not regard it as correct.

ERROR to the Circuit Court for *La Crosse*County.

The plaintiff in error having been found guilty of murder in the second degree, and a new trial having been denied, the present action is brought to reverse a judgment on the verdict. The errors relied on will appear from the opinion.

*B. F. Montgomery*and *J. W. Losey, for*plaintiff in error.

[No brief.]

*The Attorney General,*for the State.

Paine, J.

The plaintiff in error was indicted and trieü for murder, and a verdict was returned of murder in the second degree. A question of practice is made as to the sufficiency of the bill of exceptions. The counsel for the prisoner prepared a bill of exceptions, and tendered it to the judge for signature before the end of the term, but the judge declined to sign it, on the ground that it was not a full and correct bill. Thereupon the district attorney agreed with the counsel for the prisoner, that the bill might be settled after the term. The prisoner’s counsel accordingly prepared a bill after the term, served it on the district attorney, who served amendments, and agreed to a time when it should be settled by the judge; and it was so settled. The question *469is, wbetber it was competent for tbe judge to sign it after tbe term, by tbe consent of tbe district attorney. It was beld by this court, in *Oleson v. The State,*19 Wis., 560, that tbis could not be done *against*bis objection. But we .think tbis provision of tbe statute requiring tbe bill to be presented and signed before tbe end of tbe term, is one which may be waived by tbe district attorney. There are, of course, some provisions of statute which could not be controlled by tbe stipulations of parties. Tbe provision fixing tbe time for taking an appeal is of tbis character. But there are other provisions, not relating to jurisdictional questions, but regulating merely tbe method of conducting causes, which tbe parties may by their agreement waive. Provisions fixing tbe time in which to plead or settle bills of exceptions, would belong to tbis class. It would clearly be so in civil cases; and we see no reason why the same rule should not be applicable in criminal cases.

The judgment must be reversed for tbe reason that tbe verdict was improperly received. When tbe jury returned into court, one of them asked if it would be proper for him to make a statement, and, on being.told by tbe judge that he could do so, be said that “ be bad assented to tbe verdict, but it bad been bis conviction, and still was bis conviction, that tbe verdict should be for manslaughter in the-first degree, and not for murder; and that be bad reluctantly assented to tbe verdict for tbe sake of an agreement.” Tbe juror then sat down, and tbe foreman, on being asked if they bad agreed upon a verdict, said they bad, and delivered it to tbe court. Tbe prisoner’s counsel objected to its reception; but bis objection was overruled. Tbe verdict was then read to tbe jury, and tbe prisoner’s counsel requested that they might be polled. They all assented without qualification, except the one who bad before made tbe statement above quoted, and be replied *“*I assent to it *as I*
      *470
      *stated*before.” Tbe court again asked bim, “ Is tbis your verdict ?” and he answered, “ I assent to tbe verdict.” It is obvious from tbe statements of tbe juror, that be was not convinced that tbe prisoner was guilty of murder. He said explicitly that it was bis conviction then, that be ought not to be convicted of that offense. He stated tbis twice. And there was nothing in bis final statement, that be assented to tbe verdict, which at all retracted or modified what be bad previously said. He bad before said that he assented to tbe verdict for tbe sake of an agreement. And after having said that so plainly and so often, bis last statement can only be understood as having been made subject to tbe explanation already given.

Such a verdict ought not to be received-. If a juror says that be thinks the prisoner is not guilty, but assents to' the verdict for tbe sake of an agreement, that is not a proper verdict. The assent must be an assent of tbe mind to tbe fact found by tbe verdict. The case is fully within the principle of *The State v. Austin,*6 Wis., 205. See also *Farrell v. Hennesey,*21 id., 632.

Tbe charge of tbe court to tbe jury was criticised as being too much in tbe nature of an argument against tbe prisoner; and tbe rulings on tbe question of insanity were also objected to. But as we have to reverse tbe case upon tbe point above stated, we shall decline to pass upon tbe other questions.

*By the Court.*— Tbe judgment is reversed, and tbe cause remanded for a new trial.