Charlesworth v. Tinker
18 Wis. 633
Wis.
1864
Check Treatment

By the Court,

Cole, J.

The only question in this case is the *635оne arising upon the ruling of tbe circuit court excluding the evidence offered for the purpose of showing what the deceased witness, Mrs. Carter, testified to on the trial of the suit оf the state upon the complaint of Janette Tinker against the plaintiff in error, before the justice. That was a prosecution ‍‌​‌​‌‌​‌​​​​‌‌​‌​​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌‌​‌​​​​​‌​​‌​‍on behalf of the state for an assault and battery upоn Mrs. Tinker, which assault constitutes the cause of action in.this case. It is claimed that this evidеnce was properly excluded, because the .testimony of the deceased witness was not given in a judicial proceeding in which the plaintiffs in this case were partiеs, and where they had the power to cross-examine the witness. It seems, however, to .be well settled by many of the,authorities, that it is not necessary, in order to admit such testimony, that it should have been given on the trial of a cause in the exact technical shape of the second action, or that the parties in this action should be literally or nominally the same with those on the trial of the first action. See the cases cited in Cowen & Hill’s Nоtes to Phil. Ev., 1 Vol., page 389 et seq. (4th American ed.); 1 Greenl. Ev., sections 163 and 164. It appears .tр us that the true test in regard to the admissibility of .such evidence is, did the party who is to be affected by it have the power of cross-examining the witness, or at least have an opрortunity of doing so ? If the party had ‍‌​‌​‌‌​‌​​​​‌‌​‌​​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌‌​‌​​​​​‌​​‌​‍this power of cross examining the witness on the former .trial, and was legally called upon to do so, we can then see no danger or hardship in admitting the evidence in a subsequent suit after the decease of the witness. The testimony of Mrs. .Carter in the prosecution before the justice, related to the same assault in issue in this сase, and if Mrs. Tinker and her husband had the management and control of that prosecution, сould examine the witnesses &c, we think then that that testimony would be admissible under the rule abovе stated. And that our statute does give the complainant in a criminal prosecution ‍‌​‌​‌‌​‌​​​​‌‌​‌​​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌‌​‌​​​​​‌​​‌​‍before a magistrate for an assault and breach of the peace the cоntrol of the prosecution, with full power to examine all witnesses sworn upon the *636trial, there can be no doubt. It expressly declares tbat district attorneys need not apрear before the justice and prosecute in behalf of the state in any casе of common assault and battery (sec. 83, chap. 13, R. S.); and the entire management of suсh cases is within the control of the complainant, if he chooses to exercisе it. The complainant and accused strike the jury (sec. 11, chap. 121) ; either party may сhallenge any juror for cause, as in civil cases (sec. 15); and the justice is authorized tо enter judgment against the complainant for costs, if he deems the complaint willful and mаlicious, and may issue execution on such judgment against the person of the complainant, in the same manner and to the like effect as in cases where execution is issued against a defendant in actions founded on tort. Sec. 20. These provisions of our statutе fully show that Mrs. Tinker and her husband had the right to control the criminal prosecution before justicе Bennett, might employ counsel to conduct the same, and had the power and ample opportunity of cross-examining Mrs. Carter on the trial of that cause. If so, the testimоny of the deceased witness comes strictly within the rule above laid down. ‍‌​‌​‌‌​‌​​​​‌‌​‌​​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌‌​‌​​​​​‌​​‌​‍It likewise appears from the record, that the counsel for the plaintiffs in this case was also present and acted as attorney for the prosecution before the justice, and in fact did cross-examine Mrs. Carter. Under these circumstances, it seems to us that evidence as to what she testified to on that trial was admissible.

It is further objected that the record of the former suit was not produced, in order to lay the foundation for admitting this evidence. Thе admission of the testimony, however, was not objected to on that ground in the court below, as it should have been in order to make it available now. Beals v. Guernsey, 8 Johns., 446; White v. Kibling, 11 id., 128. If the objection had been placed upon this ground, it might have been obviated by the production of the ‍‌​‌​‌‌​‌​​​​‌‌​‌​​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌‌​‌​​​​​‌​​‌​‍dockеt of the justice. The failure to produce the docket must therefore be held to have been waived.

*637The result of this examination is, that there must be a new trial.

The judgment of the circuit court is therefore reversed, and a new trial ordered.