Death of David G. Hooker.

attempt to measure the loss his family has sustained in his death. Such a man could not be less than a most devoted husband and father. To his wife and children we extend our tenderest sympathies.

Resolved, that the secretary be requested to forward a copy of the foregoing to the family of our deceased brother, and that a copy be presented to the supreme, circuit and superior courts, and also to the United States circuit court for the Eastern district of Wisconsin.

J. C. Gregory, Esquire, of the Dane county bar, followed with remarks in eulogy of Mr. HOOKER, which, however, do not appear to be of record.

B. J. Stevens, Esquire, of the Dane county bar, then spoke as follows:

May it please the Court:- I became intimately acquainted with Mr. HOOKER many years since, when he was a member of the law firm of Palmer, Hooker & Pitkin, at the time one of the foremost of the law firms of the state. Mr. Pitkin was the first of its members to separate from the firm, and in pursuit of health to leave Milwaukee for the far West. There, restored to health, be shortly became the governor of the state of Colorado. Next Mr. Palmer severed his connection with the firm in order to accept the presidency of the Northwestern Mutual Life Insurance Company of Milwaukee, a position for which he was exceedingly well equipped, and to the discharge of the duties of which he has devoted the later years of his life. Mr. HOOKER, thus left singly to represent his distinguished firm, after associating with him for a time Judges DIXON and NOYES, finally selected from its business the special branch to which, more than his partners, he had given attention, and to that branch of business, and chiefly to one client, the same company of which his former partner, Mr. Palmer, is president, he gave until his death his exclusive attention and services; and with others, was largely instrumental in securing to that company ample protection for its vast interests, and a wide extension of them. It has been given

Death of David G. Hooker.

to few of the members of the bar of Wisconsin to have to do with interests so vast, and to very few of the bar, engaged in any kind of business, and representing any clients, to conduct business so satisfactorily to those interested. It has been my understanding that Mr. HOOKER enjoyed the respect and regard of the lawyers of the counties of Milwaukee and of Dane, with whom his lot was principally cast, and the lawyers throughout the state, to an extent and degree exceptionally wide and high-perhaps as much so as any other member of the bar. He has lived his whole business life in their sight, and in the universality of their respect and regard, and that of all people who knew him, must rest the best foundation for his monument.

In reply, Mr. Chief Justice COLE said:

I am not prepared to make a direct response to the resolutions of the Milwaukee bar on the death of Mr. HOOKER, as I did not know what they were until they were read by Judge NOYES, who has just presented them. I will say, however, that before Mr. HOOKER gave up his general prac tice he frequently appeared in this court in the argument of causes. He was a lawyer of acknowledged ability and of high character. He attained professional distinction by his management of causes in this court, and his death is a great loss not only to the Milwaukee bar but to the bar of this

court.

It is but proper that the resolutions be entered upon our records together with the remarks of counsel made upon them, and that all the proceedings be published in the reports; and it is so ordered.

CASES DETERMINED

AT THE

January Term, 1888.

GUNDY, Plaintiff in error, vs. THE STATE, Defendant in

error.

April 23-May 12, 1888.

Criminal law and pleading: Negative words in definition of crime: Burglary: Description of building.

1. An information for burglary under sec. 4409, R. S., need not allege that the building entered was not adjoining or occupied with any dwelling-house." State v. Kane, 63 Wis. 260, followed.

66

2. The building entered need not be described otherwise than as a certain building."

ERROR to the Circuit Court for Richland County.

The following statement of the case was prepared by Mr. Justice CASSODAY:

The information, in effect, charges that on April 5, 1887, and in the night-time of that day, the plaintiff in error, at Richland county, did with force and arms a certain building then and there situate, then and there being the property of and occupied by Jabish Weir, then and there feloniously and burglariously break and enter, with intent the goods. and chattels of said Weir in the said building then and there being then and there feloniously and burglariously to steal, take, and carry away, and then and there, with force

VOL 72-1

Gundy vs. The State.

and arms, the several articles and pieces of property therein described, each of the value therein mentioned, of the goods and chattels of the said Weir in the said building then and there being found, then and there feloniously and burglariously did steal, take, and carry away, against the peace and dignity of the state of Wisconsin. Thereupon the said Gundy was arraigned in court; and the said information being filed and read to him by the district attorney, he pleaded guilty thereto, and the court thereupon sentenced the said Gundy to be punished by imprisonment in the state prison at Waupun for the period of two years,- one day of that time to be in solitary confinement, the remainder thereof to be at hard labor. To reverse such judgment the said Gundy has sued out this writ of error.

The cause was submitted for the plaintiff in error on the brief of Michael Murphy, and for the defendant in error on that of the Attorney General and L. K. Luse, Assistant Attorney General.

To the point that an information under sec. 4409, R. S., must show whether the premises adjoined a dwelling or were occupied with one, or it does not allege any crime known to the law, counsel for the plaintiff in error cited Byrnes v. People, 37 Mich. 515.

CASSODAY, J. It is said that the information is insufficient under sec. 4409, R. S., by reason of the failure to allege that the building mentioned was "not adjoining or occupied with any dwelling-house." The only object there would have been for such allegation would be to confine the charge to the lower grade of burglary described in the section cited, by negativing the existence of a distinguishing feature of a higher grade of the same offense prescribed in the two preceding sections. This court has recently passed directly upon the question, and in effect held that in charging an offense under the section cited it is not in

The State vs. Sasse.

cumbent upon the state to allege the negative therein provided and contained in the words "not adjoining or occupied with any dwelling-house." State v. Kane, 63 Wis. 261-268. The reasons for such holding are so fully given by Mr. Justice ORTON in that case as to preclude further discussion. The same rule was sanctioned in Nicholls v. State, 68 Wis. 420; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714. The case cited by the learned counsel for the accused was not for an offense thus graded by statute, and hence is inapplicable.

The allegation of "a certain building," without other words of designation, was sufficient. Clark v. State, 69 Wis. 203.

By the Court. The judgment of the circuit court is affirmed.

THE STATE VS. SASSE.

April 23-May 12, 1888.

CRIMINAL LAW AND PRACTICE. (1) Change of venue. (2) View: Waiver of right to be present.

1. "The next term succeeding that at which the accused shall have been arraigned,” in sec. 4680, R. S., means the next term after the arraignment at which the petition for a change of venue might properly be presented to the court. Thus, where the accused was tried and convicted at the term at which he was arraigned, and the cause was pending in this court on writ of error during the succeeding three terms of the trial court, and was remanded during the fourth term thereof, such fourth term was the "next term," within the meaning of the clause above quoted. State v. Rowan, 35 Wis. 303, distinguished.

2. Where, on a trial for murder, the accused expressly waives his right to be present at a view of the premises where the murder is alleged to have been committed, the view may be had in his absence.