Fossdahl v. State
62 N.W. 185
Wis.
1895
Check Treatment
Wixslow, J.

The plaintiff in error was charged, with the commission of one distinct offense, namely, the selling of a pint of whisky 'upon á .certain day to a certain person. Upon such a charge it is well settled that the evidence of the commission of other offenses, even of a similar nature, is inadmissible. Boldt v. State, 72 Wis. 7, and authorities 'there cited. It is true that there are exceptions to the rule, such as a case where the intent with which an act is committed is in question, or where guilty knowledge must be shown, and the like; but no such fact was in issue in the present case. Such evidence is irrelevant and immaterial to the issue in the case, and has no legitimate tendency to prove guilt of the offense with which the accused is charged. In the present case the state did not attempt to prove other illegal sales in making its case, but brought out the fact from the defendant himself upon cross-examination, and it is now claimed that it was proper cross-examination. This contention cannot be sustained. Cross-examinations must be cop-fined to facts relevant and material to the case, or such as tend to test the memory of the witness or affect his credibility. This, evidence comes within neither of these classes. People v. Crapo, 76 N. Y. 288; 1 Bish. Cr. Proc. §§ 1120-1125.

We regard the evidence as to the delivery of kegs of beer at the defendant’s place of business during the summer and fall of 1892 as incompetent for any purpose. This could have no possible tendency to prove him guilty of selling whisky in October. The evidence tending to show the delivery of whisky within a short time prior to the alleged offense does not stand on the same footing. This latter evidence was admissible, as it tends to show possession of the article which is charged to have been unlawfully sold, and is thus a circumstance which, though not strong in probative force, may properly be allowed to go before the jury with other evidence tending to show the guilt of the accused.

*486The evidence of the prior convictions of the accused was .clearly only admissible as tending to affect the credibility of :the accused as a witness, and the .jury should have been so instructed. R. S. sec. 4073.

An instruction to the, effect that the accused is, presumed -to. be innocent until he is. proven guilty beyond a reasonable idoubt was refused. This is a familiar rule of law. "While ;we might not feel it our duty to reverse the case on this .ground alone, where the jury were properly instructed as to their duty to convict only upon evidence establishing guilt beyond a reasonable doubt, still we see no good reason why the instruction should not have been given as requested.

By the Court.— Judgment reversed, and cause remanded •for a new trial.