190 Wis. 266 | Wis. | 1926
The defendant, on the 27th of August, 1921, delivered to the Minocqua Lumber Company, largely owned and managed by its president, Mr. Schlecht, a bill of sale including, among other things, the brick which the defendant was charged with stealing.
The brick were shipped from Milwaukee and were unloaded at Freiheit’s Spur, in Oneida county, and were there at the time the bill of sale was given, or shortly thereafter. The information charged the offense as of June IS, 1924, and the proof of theft was limited properly to that year. The president of the company testified that the brick never came into its possession but were left at Freiheit’s Spur from August, 1921, to June, 1924. He admitted, however, that some of the brick were taken away in 1922 and some in 1923. He gave the value of the brick as follows: 4,000 common brick, at $20 per thousand, $80; 500 fire brick, $35; 500 finish brick, $20, — all of the value of $135.
Schlecht further testified that he saw the brick at Frei-heit’s Spur in the summer of 1924, and that he should judge there were somewhere near 4,000 brick there at that time.
The defendant assigned as error that the judgment is
There is great discrepancy between the value as proved by the State and the value as found by the jury. The jury found the total value of the 5,000 brick charged in the information as testified to by Schlecht, notwithstanding Schlecht testified that there were only about 4,000 brick at the Spur in 1924.
There were three witnesses to the alleged theft, each testifying to the same and. single act of larceny. They testified that in May or June, 1924, they were at Freiheit’s Spur in the daytime and saw the defendant taking a small load or jag of brick from the Spur, and that he finished out his load by taking lumber and other material from a box car. “He just put on a few brick, and then he run over to the other car and filled it with lumber and some round veneer sticks they had there — had a carload put in there.” The defendant admits taking a few brick at this time. He testified that he took about 500 brick, some of them broken, and that they would be worth about $22 a thousand. There was no other proof as to the larceny in question.
It seems that the evidence clearly does not justify the finding of the jury as to the value of the brick taken. The discrepancy is so large as to lead to the conclusion that the jury were mistaken or that the verdict was the result of prejudice and passion. The result must be considered as prejudicial, for the reason that under the evidence the value of the brick taken was less than $15, and the crime proven would be petty larceny .and not grand larceny.
The defendant also assigns as error that the co.urt excluded evidence offered by the defendant to show circumstances attending the giving of the bill of sale.
It was'the contention of the defendant that the bill of
“Q. Do you know whether or not this was to be an absolute bill of sale? Was there anything said as to whether the title was to be conveyed to Minocqua Lumber Company? A. Yes.
“The Court: It would be. presumed to be that. We will take the bill of sale just as it reads.”
The defendant further assigns as error that the court erred in admitting evidence of the previous conviction of defendant and in commenting thereon and in denying defendant an opportunity to tell in a general way the nature of that offense.
On cross-examination the defendant was asked if he had been previously convicted, to which he answered “No.” Then the following took place:
“Q. You were never tried nor convicted for any offense then? A. Yes, sir, I was tried once on a charge of getting money by misrepresenting a piece of land, and the court set it aside because it was wrong.
“Q. That is, it was tried in the wrong county? A. No, sir.
“The Court: This court knows about that. Be careful.
“Q. The venue was wrong. It should have been tried in Milwaukee county instead of Oneida county, isn’t that true? A. When I was able to get my witnesses—
“Mr. Kelley: If the court please—
“The Court: That was tried in Oneida county, wasn’t it? A. Yes, sir.
“The Court: And there was a verdict of guilty returned against you? A. That is true.
“The Court: And the circuit court for Oneida county, myself sitting as Judge, set aside the verdict because the proper place to try it was in Milwaukee county and not in Oneida county? A. Yes, sir.
“The Court: That is the case? A. Yes. That is true. But I was convicted because—
“The Court: Wait a moment. That is all we are concerned with.
“Mr. Van Hecke: I would like to have it clear to the jury there is no conviction standing against him.
“The Court: It is true there is no conviction standing against him in that.”
“On the trial of a person for a particular offense, evidence tending to prove that he has committed other distinct offenses is incompetent and generally prejudicial.” Topolewski v. State, 130 Wis. 244, 249, 109 N. W. 1037.
“From the time when advancing civilization began to recognize that the purpose and end of a criminal trial is as much to discharge the innocent accused as to punish the guilty, it has been held that evidence against him should be confined to the very offense charged, and that neither general bad character nor commission of other specific disconnected acts, whether criminal or merely meretricious, could be proved against him. This was predicated on the fundamental principle of justice that the bad man no more than the good ought to be convicted of a crime not committed by him.” Paulson v. State, 118 Wis. 89, 98, 94 N. W. 771; Davis v. State, 134 Wis. 632, 641, 115 N. W. 150.
The State claims questions by the court were not objected to and hence may not be reviewed. In a criminal case, if the defense should interrupt the court with ob
“Examination of witnesses by the court is not per se a ground for a new trial. This practice, however* is a dangerous one, and if the discretion of the court in the premises is abused a new trial will be granted, as where the examination is of such a character as to tend to discredit a witness for defendant, or to lend credibility to a witness for the prosecution, or to involve an intimation of opinion on the evidence, or where the judge expresses an opinion unfavorable to defendant or as to the witness’ testimony.” 16-Corp. Jur. 1137. Also see- sec. 2405», now sec. 251.09, Stats.
The defendant, having been searchingly cross-examined by the court, attempted to tell in a general way the reason of his conviction. He said: “Yes. That is true. But I was convicted because — ,” and the court stopped him, saying, “Wait a moment. That is all we are concerñed with.” This was error. Remington v. Judd, 186 Wis. 338, 341, 202 N. W. 679.
A witness for the State, testifying as to defendant’s reputation for truth and veracity, on cross-examination testified :
“Q. You had some trouble with him [defendant], didn’t you? A. I had some trouble with him?
“Q. Yes. A. Sure. He beat us out of our last cent; that is why I had trouble with him.
“Defendant’s attorney: I move to have the last part of the answer stricken out.
“The Court: Let it stand.”
The defendant complains of this ruling. The ruling clearly was error and prejudicial. It introduced a serious charge against the defendant, foreign to the issues, which he was not at liberty to rebut.
By the Court. — The judgment of the circuit court is reversed, with directions to grant a new trial to the defendant.