Novkovic v. State, 149 Wis. 665.

"(7) You are also instructed that the evidence of an accomplice is competent evidence in a criminal case upon which to base a verdict of guilty, provided it is of such a character, taken in connection with all the other evidence in the case, as to satisfy you of the guilt of the defendant beyond a reasonable doubt, but you should examine such evidence with the utmost care and caution, scrutinize it closely and weigh it in the light of all the attendant circumstances as shown by the whole evidence, and you should not base a verdict of guilty upon it alone unless after such scrutiny it satisfies you of the guilt of Marie Novkovic beyond a reasonable doubt."

The first of these instructions was wrong as applied to the facts in this case, under the decision in Miller v. State, 139 Wis. 57, 119 N. W. 850. The second would have been correct had Mravic testified as a witness on the trial. Not having testified, the instruction could only relate to the confessions which he made. These instructions standing alone might lead the jury to believe that the confessions of Mravic, if he were either a co-conspirator with his codefendant or an accomplice of hers, would be evidence properly admissible against her to establish her guilt. These instructions were general in form and did not direct the attention of the jury to any specific evidence in the case, and we think in view of the following instruction dealing directly with Mravic's confessions they did not prejudice the defendant:

"Certain statements made by the defendant Pajo Mravic having been admitted in evidence in this regard, you are instructed that they are not binding upon Marie Novkovic unless you are satisfied beyond a reasonable doubt that she acquiesced in them. The statements or confessions are binding only on the one making them unless assented to so as to become binding upon the other, and in passing upon this question you will give the defendant Marie Novkovic the benefit of any reasonable doubt you may have, and then if you are not satisfied that she assented to the statements made by Pajo Mravic before the chief of police and at the coroner's inquest you ought to dismiss them from your minds so far as the defendant Marie Novkovic is concerned and find her not guilty

Novkovic v. State, 149 Wis. 665.

unless the remaining evidence satisfies you beyond a reasonable doubt that she is guilty of murder in the first degree.”

Error is assigned because the court refused to give the following instruction:

"You are instructed that the concealment of a commission of a crime by telling a false story does not constitute the defendant Marie Novkovic a principal, nor does the fact of her being present, and you are instructed that merely being present and failing to endeavor to prevent a homicide, if such be the case, does not render her a principal."

It does not appear that any claim was made that the defendant's guilt would be established by proving that she concealed the crime and that she was present when it was committed. These were evidentiary matters which tended to establish her guilt and which might be properly considered by the jury in connection with other facts and circumstances. It is not necessary that a court should take up the different items of evidence relied on to establish the guilt of an accused person and say as to each particular item that it is insufficient in itself to prove guilt.

Error is also assigned because the court refused to give the following requested instruction:

"The defendant Marie Novkovic claims that she was not a party to the crime and that the sole responsibility of this homicide rests upon Pajo Mravic. She is entitled to the benefit of a reasonable doubt. You cannot find her guilty under this information of being an accessory before the fact. That charge has been withdrawn and the only offense here charged is murder in the first degree, and if you are not satisfied beyond a reasonable doubt that she was an active participant in the design and doing her part at the time in its furtherance, then, and in that event, you ought to find her not guilty."

The point made on the refusal to give this charge is that the defendant was entitled to have the jury instructed that she could not be convicted unless they were satisfied beyond

Novkovic v. State, 149 Wis. 665.

a reasonable doubt that she was an active participant in the design to kill her husband and was doing her part at the time of the murder to further the commission of the crime. The instruction was misleading, in that the jury might infer therefrom that the defendant could not be convicted unless she assisted Mravic while he was delivering the blows that resulted in her husband's death. The court gave a substantially correct instruction covering the matter. After telling the jury what they must be satisfied of before convicting Mravic, the court proceeds:

"The next question for you to determine with reference to the defendant Marie Novkovic is, Was there in fact a conspiracy? Was she a member of such conspiracy? Did she conspire and confederate with her codefendant to commit or bring about such killing?"

"If you find from the evidence beyond a reasonable doubt that at the time and place charged the conspiracy mentioned in fact existed and that she, Marie Novkovic, was a member of such conspiracy and that she did in the language of the law conspire, confederate, and agree with said Pajo Mravic to commit said murder, then it will be your duty to find her guilty of murder in the first degree."

"Should you, however, entertain a reasonable doubt or fail to find beyond a reasonable doubt that a conspiracy in fact existed and that the said Marie Novkovic conspired, agreed, understood, combined, and confederated with said Pajo Mravic to commit said murder, then you will find the defendant Marie Novkovic not guilty."

There were found in Mravic's trunk two receipts, one for a ticket for the transportation of a Mrs. Mravic to this country, and another relating to the transportation of baggage, one being dated July 5, 1911, and the other on the day following. The defendant offered these papers in evidence and they were ruled out as immaterial. Error is assigned on this ruling. If they had any bearing on the case, it was so remote that no error was committed in rejecting the evidence.

By the Court.-The judgment of the municipal court of Milwaukee county is affirmed.

INDEX.

ABATEMENT AND REVIVAL.

See MUNICIPAL CORPORATIONS, 24.

Survival of action: What causes of action survive: Who is entitled
to recover.

1. Under sec. 4253, Stats. (Laws of 1907, ch. 353), the right of ac-
tion for personal injuries occasioned by negligence survives,
but such cause of action does not exist where death is instan-
taneous, a new right of action in such case being given by
sec. 4255. Johnson v. Eau Claire,
194
2. A complaint which attempts to state a cause of action in favor
of the administrator of the deceased person for the benefit of
his estate should make it appear that there was an interval of
suffering between the injury and the death.
Ibid.
3. The words "party injured," as used in sec. 4255, Stats. (1898),
mean the party whose death is caused, not the relatives of the
deceased.
Ibid.
4. The damages recoverable by the administrator under said
sec. 4255 are entirely different from those which would have
been recoverable by the injured person himself, but the fact that
such person could, if death had not ensued, have maintained
an action is still the test of the right of his administrator to
recover the statutory damages measured by the pecuniary loss
to relatives.
Ibid.

5. The amendment to sec. 1339, Stats. (1898), by ch. 305, Laws of
1899, does not exempt the municipality from liability to the
person injured, even though such person be a wife or minor
child, but only excludes recovery by the husband or parent for
loss of services; hence the right of action under sec. 4255 for
the death of such person is not barred. [Whether such amend-
ment diminishes in any degree the damages recoverable under
sec. 4255, not determined.]

ABUSE OF DISCRETION. See CRIMINAL Law, 9.

Ibid.

ACCEPTANCE. See DAMAGES, 4. EXECUTORS AND ADMINISTRATORS, 1, 2.
ACCOMPLICES. See CRIMINAL LAW, 9-13. INSTRUCTIONS TO JURY, 2.

ACCORD AND SATISFACTION. See RELEASE.

ACCOUNTING. See DEEDS, 7, 9, 10. PARTNERSHIP, 1.

ACTION.

By whom maintained. See MUNICIPAL CORPORATIONS, 2. OFFICERS, 5.
Conditions precedent. See MUNICIPAL CORPORATIONS, 23. PUBLIC
UTILITIES, 7.

Bar. See RELEASE.

Abatement and revival. See ABATEMENT AND REVIVAL.

Cause of action.

1. If one commits a legal wrong to another he cannot avoid compen-
sating such other for his actual legal damages because of hav-
ing acted in good faith. Gebhardt v. Holmes,

Joinder of causes of action.

428

2. A cause of action for damages suffered by a decedent prior to his
death as the result of a personal injury may properly be joined
in one complaint with a cause of action under sec. 4255, Stats.
(1898), for the death. Johnson v. Eau Claire,
194

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS.

ADMISSIONS. See MUNICIPAL CORPORATIONS, 25. Towns, 1.

AFFIDAVIT OF PREJUDICE. See CRIMINAL LAW, 8.

ALIENS. See MUNICIPAL CORPORATIONS, 24.

AMBIGUITIES. See LANDLORD AND Tenant.

Of statute. See JUDGES, 2.

AMOTION. See CORPORATIONS, 3, 4.

ANSWER. See APPEAL, 3. PLEADING, 2.

ANTICIPATION. See MASTER and Servant, 9, 10.

APPEAL.

Decisions reviewable: Lack of jurisdiction in tribunal below.
1. The rule that the appellate tribunal acquires no jurisdiction if
the tribunal whose act is sought to be reviewed had none, is to
be applied with caution and discretion; and in any case no mere
admission that proceedings are void can show that the tribunal
below had no jurisdiction of the subject matter, for the same
reason that no consent could confer such jurisdiction. Schmidt
v. Milwaukee,
367

2. Thus, where the notice of appeal from an assessment by a board
of public works of the damages to abutting property by reason
of a change in the grade of a street stated generally that the
proceedings were illegal and void, such statement, although as-
sented to on behalf of the city, did not deprive the circuit court
of jurisdiction of the appeal. Jurisdiction in such cases is de-
pendent upon and governed wholly by the statute.
Ibid.

Right to review: Waiver.

3. A defendant does not waive his rights on an appeal from an or-
der overruling his demurrer to the complaint by putting in an
answer after the appeal is taken. Platteter v. Paulson-Elling-
son Lumber Co.

Exceptions. See APPEAL, 17.

186

4. An order overruling a demurrer to the complaint can be reviewed
on appeal although not excepted to. Platteter v. Paulson-Elling-

son Lumber Co.

186