The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1915-04-22
of a x9frame-nn. :,

WuCbueI Tie ouSSoSLlUA W uoO ny udHltO
came from the detectives or the de-
PENDANT, but there was ample evidence
to warrant the jury in finding that the
dynamite idea was the defendant s
own conception. The evidence of the
detectives was to that effect. 1t was
not very reliable, to be sure, but
neither was that of the defendant.
Now, there was no dispute about the
following facts: Defendant went from
Kenosha to Racine to buy dynamite,
and he did buy it and carried it back
to Kenosha with him. There is no
doubt that he had agreed with the de-
tectives that this dynamite was to be
used to blow up DeCou's house, and
there is not the remotest doubt that he
intended it was to be so used, unless
he was acting under duress. If he was
not SO acting, then he had done every
thing essential to constitute a crime
under sec. 439Sa Stats. Not single
element or ingredient necessary to con-
stitute an ofense was lacking. The
jury must have found that he did not
act under duress, and it was fully jus
titled in so finding. Aside from the
evidence of the detectives, the admit
ted facts show pretty conclusively that
he was not. He had ample time to
advise Jeffrey or DeCou of what was
going on while the plot was being
Matched up. He could have notified
them personally or by telephone or by
letter, or he could request some Of his
friends to do so if he desired. He
passed policemen and police station
IN Kenosha when going for the dyna-
mite, and passed policemen in Racine
before and after he purchased it, and
again in Kenosha after he returned
with it. If he was acting under duress,
he must have been hypnotized. Really
q jury would have to be pretty credu-
lous to take much stock in the defen-
dant IS claim that he acted under duress
while he was plotting murder and do
ing his part to carry out the plot. If
the Topolewski case correctly states the
law, the overwhelming weight of the
evidence supports the verdict of the
jury.
/ am not disposed to find fault with
the construction placed upon sec. 4398a
Stats, although it is pretty strict. The
moral turpitude of the defendant was
just as great as though the detective IS
IN fact intended to blow up DeCou s
house. There may be room for saying
that the jury intended to find the de-
PENDANT guilty Of the offense named in
the last part of the statute to-wit, that
OF conveying the explosive knowing
that it was intended to be used by some
other person. What I contend is that
there is absolutely no room for saying
that the jury did not intend to convict
for the offense of transporting dyna-
mite with the intention that the same
should be used to blow up DeCou.
Stripped of verbiage, immaterial for
the purposes of the case, the statute
provides that "any person who shall
transport y dynamite \
with intent that the same shall be used
: for the property or the
murder OF any person or
knowing that such explosive compounds
are intended to be used by any other
person for any such purpose shall
be punished etc.
Either defendant in transporting the
dynamite acted under duress or he did
not 1t he did, then he could not be
convicted under either provision of the
statute, and the jury was so informed
1t he was not carrying it under duress,
what was he carrying it forg The ques-
ton admits of but one answer. He
was carrying it with the intention and
expectation that it was going to be
used by his supposed confederates in
blowing up DeCou 5 house. He was
mistaken in the latter supposition, and
therefore not guilty of the second of
Tense, but every element of the first
otfense was present. If the dynamite
was really intended by the defendant IS
supposed pals for the purpose that de-
PENDANT thought it was, there was no
possible way in which the defendant
could be guilty of the second offense
and not the first. Juries usually ex-
hibit a high degree of common sense,
and if the jurors found in this case
that the dynamite was transported
knowing that it was to be used by some
third person for forbidden purpose,
it likewise found that the defendant
carried it intending that it should be
used for such purpose. This court has
IN the last few years said with fire.
quent reiteration that it would not re-
verse judgments in criminal cases for
| lmmaterial errors. Tt must be salts
fed that it is reasonably probable that
had the error not occurred the result
would have been different. Oborn v.
State, 143 Wis. 249; Parb v. State, 143
Wis. SCI; Radej V. State, 152 Wis. sos,
515; Miller V. State, 139 Wis. 81; An
derson V. State, 1873, Wis. COL. To my
way of thinking, there is not the
slightest ground for believing that the
verdict would have been different had
the court informed the jury that the
| defendant could not be convicted under