| Wis. | Jul 1, 1858
The plaintiff in error was indicted for manslaughter, for feloniously, in the heat of passion, and without a design to effect death, hilling by means of a dangerous weapon, to wit, a chisel, his son Herman Albricht. Hpon the trial of the canse, one Lonise E. Geib was called as a witness on the part of the State for the purpose of proving that she had seen the defendant strike his son, at a former time and times not connected with the transaction upon which the indictment was founded./This testimony was objected to for irrelevancy, and as not being admissible under the indictment; but the objection was overruled, and the witness permitted to testify that she saw the defendant, about a year previous, strike his son with an axe-helve, and knock him down; that she had seen the defendant strike the boy with his fist and often knock him down. The defendant was found guilty as charged in the indictment; and a motion was made for a new trial, chiefly upon the ground that the evidence of Louise was incompetent and improperly admitted. The motion was depied by the court and an exception taken.
, The only question we have now to consider, is, was the iestimony of Louise properly admitted? We think it was not.
It is stated to be a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue, and that the necessity of strictly enforcing this rule is stronger if possible in criminal than in civil cases. Roscoe’s C. Ev. 57; 2 Russel on Crimes, 695; 1 Greenl. Ev., §52 and 53; 1 Phil. on Ev. 477. “ Under this rule, (it is also laid down by Ros- “ coe,) it is not competent for the prosecutor to give evidence “ of facts tending to prove another distinct offense for the purpose of raising an inference that the prisoner has committed “the offense in question. Thus, in treason, no overt act “ amounting to a distinct and independent charge, though fall“ing- under the same head of treason, can be given in evi- “ dence unless it be expressly charged, in the indictment; yet “if it amounts to direct proof of any of the overt acts laid, it “maybe given in evidence. Poster, 245. Upon the same “ ground it is not competent to the prosecutor to give evidence
In the case at bar it is quite true that the court in its charge instructed the jury that the evidence of Louise was incompetent to prove the corpus delicti — and that they were not at liberty to conclude, from the circumstances, that the defendant had been in the habit of striking his boy and knocking him down, that he did kill him, but that the fact of his killing the boy must be established by other testimony. Notwithstanding this caution of the court, we think the admission of the testimony was calculated to prejudice the defendant in the minds of the jury, and the defendant having no notice of such a course of examination, could not have been prepared, however unfounded the evidence might have been, to show its falsity and rebut it.
The court further stated in substance, to the jury, that if they were satisfied that the defendant did kill the boy, then they might consider his previous treatment of him simply for the purpose of ascertaining the frame of mind or temper of the defendant when he committed the fatal act; and that when the indictment was for manslaughter in the third degree, as in this case, the offense must have been committed in the heat of passion, and without the design to effect death ; and if they should be satisfied from the evidence that the defendant had been in the habit of striking the boy and of knocking him down in a passionate manner, they were at liberty to consider this in arriving at the conclusion whether, if he committed the offense, it was done in the heat of passion without a design to effect death. But we do not consider the testimony of Louise admissible for any such object or purpose as supposed by the court.-.- It will be remembered that the indictment distinctly charged that the offense was committed in the heat of passion and without a design of effecting death. There was, therefore, no question as to the purpose or intent with which the act was done. No malice, express or implied, had been alleged, and of course there could be proof of none. Had the
As already observed, the question of intent did not arise under this indictment, for it expressly negatived the idea that there was purpose or design in the killing. And the killing would have been presumed to be felonious or unlawful until the contrary appeared.^, - , ^
"We therefore think that there must be ajnew trial!