Dunn v. State

118 Wis. 82 | Wis. | 1903

Cassoday, C. J.

It is conceded that Emil Lieber was murdered by somebody at the time and place mentioned in the testimony. On being arraigned,-the plaintiff in error pleaded “Not guilty;” and, in the language of the trial court in charging the jury, be “interposed as a defense what is known in law as an ‘alibi/ that is, that be was at the time of the killing of Lieber at another and different place than that in which the crime was committed, and therefore was not and could not have been the person, or one of the persons, who committed the same.” In the same connection the court charged the jury that “such defense is as proper and legitimate as any other, and the defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal.” The whole question of the guilt or innocence of the plaintiff in error turned upon the matter of bis identity. With the exception of the testimony of Mrs. Lieber, mentioned, the evidence is entirely circumstantial. It is conceded on behalf of the accused “that if the jury disbelieved the testimony of the defense, and believed the testimony of the state, they would be warranted in finding a verdict of murder in the first degree.” But the same counsel insist, as they have a right to insist, “that, no matter bow enormous the crime, or the brutality with which it was perpetrated, any citizen charged therewith is entitled to a fair and impartial trial according to the rules of law and evidence.” The only error relied upon for a reversal is in permitting the state’s attorney, in bis argument to the jury at the close of the testimony, to say “that, if one of the jurymen were arrested on a charge at this time, be could at least show himself — he himself.could show the circumstances surrounding the affair, and not depend upon friends or relatives to get him out of the difficulty” — or to say that in substance. Upon exception being taken to such remarks, the state’s attorney attempted to justify the same by claiming that in making such remarks be was simply referring to and commenting upon an illustration used by counsel for the accused in bis opening statement, wherein be said:

“If one of these jurors, at a certain time when they were sitting here in the jury box, were accused of a crime, that the defense would be ap. alibi and the only defense.”

The court verified that as being the statement made by counsel for the accused, and thereupon the state’s attorney stated that, in replying to and commenting upon that statement, he had argued that “if that was true — if that would have been and could have been the only defense — at least they could explain the circumstances surrounding the act, and not rely upon others to explain where they were or what they had done at that time.” To those remarks counsel for the accused excepted. Theretipon the court stated that counsel for the state had simply made a reply to a statement made by counsel for the accused, and when counsel for the accused remonstrated he was told by the court to go on; that he would have the benefit of an exception. The defense was an alibi. The accused did not take the stand as a witness in his own behalf, as he had a legal right to do under the statute (see. 4071, Stats. 1898). But that statute declares that “his refusal or omission to testify shall create no presumption against him.” The remarks of the state’s attorney, above quoted, and to which exceptions were taken, left the jury to infer that the accused could himself, alone, by taking the staml as a witness in his own behalf, have shown “the circumstances surrounding the affair, and not depend on friends or relatives to get him out of the difficulty.” It was not justified by what was so said by counsel for the accused. Comment to the jury by the district attorney upon the fact that a person on trial for crime “did not offer himself as a witness in his own behalf” has been characterized by this court as a “gross impropriety.” Martin v. State, 79 Wis. 165, 175, 48 N. W. 119, 122. Eor counsel'to abuse his privilége has frequently been condemned in civil cases. Andrews v. C., M. & St. P. Ry. Co. 96 Wis. 348, 361, 362, 71 N. W. 372; MacCarthy v. Whitcomb, 110 Wis. 124, 85 N. W. 707, and cases there cited. Under a similar statute, the supreme court of the United States has strongly condemned such comments. Wilson v. U. S. 149 U. S. 60, 66, 67, 69, 70, 13 Sup. Ct. 765. In tbat case Mr. Justice Field, speaking for the whole court, among other things, said:

“It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. . . . Counsel is forbidden by the statute to make any comment which would create or tend to create a presumption against the defendant from his failure to testify.”

Quoting approvingly from another case, it is there said:

“When the statute says that no presumption against the accused shall be created by his neglect to testify, it clearly meant that, in cases where the defendant should not choose to avail himself of the privilege offered by the statute, the trial should be conducted in the same manner and upon the same presumptions as if the statute had not been passed.” See, also, Hall v. U. S. 150 U. S. 76, 81, 82, 14 Sup. Ct. 22.

In the ease- at bar the trial judge, when his attention was called to the remarks, should have promptly condemned them. But with some hesitation, we axe constrained to hold that such error, in view of the charge of the court which followed, should not work a reversal in this case. The court charged the jury:

“The statutes of our state provide, and you are so instructed., that ‘in. all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness, but his refusal or omission to testify shall create no presumption against him or any other party thereto.' ”

The court then added:

“The argument of counsel is only for the purpose of aiding you to reach a proper verdict in the case, by refreshing in yoUr minds the evidence which has been given to you in this cause, and by showing the application of the law thereto; but, whatever counsel may say, you will bear in mind that you are to decide the questions at issue free from bias, prejudice, or sympathy; that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the court in these in-structions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.”

Thus at the very close of the trial the jury were “instructed” that the “omission” of the accused to testify should “create no presumption against him;” that the argument of counsel was only to aid them by refreshing in their minds the evidence, and showing the application of the law; and that they were to decide the questions at issue according to the evidence, and the law as given to them by the court, free from bias, prejudice, or sympathy, and regardless of the remarks of counsel. Such charge, we are forced to believe, was sufficient to do away with the inference which the jury might otherwise have drawn from the remarks of the state’s attorney to which exception was taken. There is no claim of any -other error calling for consideration.

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