Barczynski v. State

91 Wis. 415 | Wis. | 1895

Cassoday, C. J.

It is contended that the district attorney never should have been allowed to make the remarks mentioned in the foregoing statement; that the accused was greatly prejudiced by them; that, the giving of the instruction requested by the counsel for the accused .did not cure the error. Certainly, the giving of such instruction in the very language requested cannot-be assigned as error. Bé-sides, the court charged the jury, in the same connection, strongly condemnatory of the -remarks of the district attorney, as indicated in the statement, and then, on giving the .instruction, added: “ On the contrary, you must studiously disregard them and dismiss them .from your minds.” We do not think the court was required to say more. It does .not appear that the court was requested to say more. It will not be claimed that the trial could proceed no further after the making of such remarks. Besides, it appears from the record that the counsel for the accused had previously, in his argument, gone outside of the record and talked about other cases; and what the district attorney said was by way of reply. As said in another case: “Counsel necessarily have a broad latitude. Where counsel on one side transcend their privilege, counsel on the other side may, without jeopardizing their case, follow them and indulge in proper comments upon the same matter. Hoffmann v. State, 65 Wis. 46. This is substantially what is claimed to have been done here. The trial judge is necessarily familiar with all such facts, and circumstances, as well as all shades of the evidence. He must necessarily have a broad discretion in such matters. Scmiry v. State, 67 Wis. 67. Error is not to be presumed in such a case. If counsel abuse their privilege, or the trial court its discretion, it should be made to appear affirmatively by incorporating all essential facts and circumstances showing it in the record. Hoffmann v. State, 65 Wis. 46. We cannot sajr from this record that there wa,s any suck abuse of privilege or discretion.” Baker v. State, 69 Wis. 41. To the same effect: Smith v. Nippert, 79 Wis. 139, 140, and cases there cited; Laue v. Madison, 86 Wis. 462. No other error is assigned.

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