Drinkwater v. State
168 Wis. 176
Wis.
1918
Check Treatment
Vinje, J.

Error is assigned because the witness Pugh, after testifying on behalf of the state that he had seen the gun used by defendant once before in Prairie du Chien about the 20th of March, was permitted to state that defendant and he came to Prairie du Chien together and that they remained two days alone in her house. On cross-examination he testified that he came to get some books from her and *180that nothing improper occurred between them while he was there. It is urged that this testimony served to prejudice the jury against defendant and should not have been admitted. Its relevancy is not very great. It was probably admitted to show the circumstances under which he saw the gun so that there could be no mistake about the fact that he did see it. That such circumstances were of a character perhaps somewhat prejudicial to defendant was due to her own conduct. There is nothing in the record to show that this evidence was in any way commented upon in the argument of the case to the jury and we cannot say that its reception was error, much less prejudicial error.

It is further claimed that the court erred in permitting the state to cross-examine or impeach its own witness, Pugh. Upon the trial he was quite vague and indefinite as to what he saw and heard at the time and just preceding the firing of the fatal shot. He said the shot came from the direction of the defendant and thought she had her right hand in front of her; that was about as much as he could remember-he saw. Questions and answers taken from his testimony given before the coroner’s inquest the next day after the shooting were then read to him and he admitted he made answers as therein contained or else that he did not remember. His testimony at the inquest was to this effect: He was right by defendant’s side when she fired the shot; saw the gun in her hand; saw her fire it, and that it seemed to be aimed at the stomach of deceased. It was evident that Pugh was an unwilling witness on the part of the state at the trial. But he was one of the only two eye-witnesses to the shooting besides the defendant and had to be called by the state. A wide discretion must be allowed trial courts in permitting counsel to refresh the recollection of a witness that apparently does not wish to remember. Here nothing more was done. The testimony taken before the coroner was not introduced. No impeachment of his testimony was attempted, but his recollection was sought to be refreshed by *181calling his attention to what he said upon the inquest. It was within the discretion of the trial court to permit that to be done with this witness under all the circumstances shown. The trial court could better judge of the unwillingness of the witness than we can, though that appears clearly enough from the record.

The court was asked to submit the question of excusable homicide, but refused to do so, saying in the presence of the jury, “Now, according to defendant’s own testimony she had that revolver, she had it in her right-hand pocket, and she took it out; that she began to hammer Drinkwater with that revolver, and if it went off it was the result of culpable negligence. She had absolutely no right, under any of the facts in this case, to have that revolver in her pocket to be taken out at that time, to take it out and to hammer him with it or to handle it in any such way that it might go off and kill anybodyand later, in reply to a remark of counsel for defendant, the court said: “Yes, I know that. But I say that where it is absolutely an undisputed fact that the defendant was culpably negligent, and that that was the cause the revolver went off, I won’t stultify myself by giving an instruction that would warrant the jury in finding that it. was excusable, accidental.” Without stopping to consider whether the court was not technically correct in saying that defendant had no right to carry a concealed weapon or to take it out and hammer the deceased with it as she testified she did, we will assume that the remarks had some tendency to prejudice her before the jury. The court emphatically declared that she was culpably negligent. Had the jury found her guilty under sec. 4363, Stats., declaring that “Every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable nor excusable, . . . shall be deemed manslaughter in the fourth degree,” there would be much more room for an argument that the jury were influenced by the court’s remarks. But they negatived that crime and found *182her guilty of a higher one, where an imminently dangerous act, evincing a depraved mind regardless of human life, is the chief ingredient. Under our present practice and the beneficent provisions of sec. 3072w, it is not alone sufficient to show error to work a reversal, but error of such a character must be shown as to satisfy this court that but for such error a result materially more favorable to the appellant would probably have been reached by the jury. Hommel v. Badger State Inv. Co. 166 Wis. 235, 243, 165 N. W. 20, and cases cited. The error must affect a substantial right and we must be satisfied that substantial justice has not been done before we reverse. Here we have a situation where a woman in the presence of two strong, active men, both her friends, in the middle of a village street in the early evening, takes a revolver out of her pocket and begins to hammer the deceased over the arm because he has hold of her by the arm or sleeve and wants her to come into their saloon for the purpose, as she says, of having her get her clothes and go away with her companion. Evidently the jury thought she was in no bodily danger and that she must have known that fact because they negatived self-defense. They also evidently believed that she recklessly and voluntarily fired the gun regardless of the result. Can we say from the evidence that they were not justified in so' believing and finding? It seems not. We are satisfied that justice has been done— hence none of the alleged errors should work a reversal. It were better, however, in criminal cases for trial judges to refrain from expressing their views in the presence of the jury as to the probative force of the evidence upon any phase of the alleged guilt of the defendant, and simply rule upon the objections or requests made without comment upon what the evidence shows.

By the Court. — Judgment affirmed.