114 Wis. 318 | Wis. | 1902
1. An error assigned upon overruling the plea in abatement, for that the defendant’s preliminary examination was had upon the complaint sworn to by his wife, cannot be sustained. From early times the law has recognized the necessity of accepting the wife’s testimony to prove personal assaults upon her by the husband, as an exception to the general rule excluding the wife from testifying for or against her husband. Mills v. U. S. 1 Pin. 73, 74; Stein v. Bowman, 13 Pet. 209, 221; People v. Northrup, 50 Barb. 147, 156; Comm. v. Sapp, 90 Ky. 580, 14 S. W. 834.
2. Error is assigned because, after the complaining witness had testified, her cross-examination had been completed, and
3. Error is assigned upon tbe rulings and remarks of the court witb reference to examination of a witness, Tillie Son-nenberg, who was formerly a domestic servant in tbe family
“Q. Did you ever hear Mrs. Mary Goodwin make any threats? (Objected to as leading.) By the court: What, if anything, did you hear Mrs. Goodwin say to Mr. Goodwin ? Q. Did you ever see her with a butcher knife in her hand? (Objected to.) By the court: It is most certainly directing her attention directly. Q. What, if anything further, did you see Mrs. Goodwin do, or hear, while you were there ? By the court: Limit it. I can’t have the general conversation. (Exception.) Q. Anything in the line of threats or otherwise? By the court: I won’t permit any further suggestion in the line of the answers you want.”
After some further questions were held leading, counsel for defendant said: “I would like to have the court suggest— By the court: We are not running a kindergarten.” Clearly the court was too restrictive. It was apparent that the testimony was preliminary to the relation of threats and of conduct involving the use of a butcher knife, and the mere inquiry whether there were any such occasions was in no wise prejudicial; but, further than this, when the counsel, in deference to the court’s rulings, attempted to make his question general, he was promptly restrained from that course. We confess to the same difficulty in understanding the court’s position which seems to have burdened defendant’s counsel. If he could neither call for a general conversation without limiting it, nor could put a question which had merely the effect of limiting the subjects of the conversation called for, he was indeed in bad case. The defendant was entitled to' bring out the facts. If the court deemed it perilous, by reason of the attitude of the witness, to allow any leading, then of course he might restrain the counsel; but in that event he should not have prevented him from putting general questions containing no suggestion of the subject upon which he wished the witness to testify. When counsel, after these confusing rulings, asked for suggestion from the court, we think he was
In the cross-examination of the same witness, she having testified that she had made a complaint against a young man for bastardy, she was asked: “How long before you left Goodwin's did you make that complaint?” and again, “Did you have a child after you went away?” These were objected to, the objection overruled, and the evidence admitted only as to credibility of the witness. No authority is cited to us that the fact of a woman’s illegitimate pregnancy or of her making complaint for bastardy is admissible as bearing upon her credibility. It is not authorized by sec. 4013, Stats. 1898. The admission of such questions and such inquiry, tending, as it must, to defame the witness before the jury, is error and highly prejudicial. Muetze v. Tuteur, 77 Wis. 236, 243, 46 N. W. 123; Buel v. State, 104 Wis. 132, 145, 80 N. W. 78; Kolb v. Union R. Co. (R. I.) 49 Atl. 392, 54 L. R. A. 646; Rapalje, Witnesses, §§ 197, 201; Thompson, Trials, §§ 525, 535. The error was not cured by the fact that after the ruling and admission of the evidence, and on a suggestion of doubt by the court as to the course of the cross-examination, counsel for the state withdrew the question. The evidence was already in, and had had its effect upon the minds of the jury, and there was no instruction by the court to disregard it. Specific and prejudicial error having been committed, something more than the remark of counsel that the question was withdrawn was necessary after it had been ruled on and answered.
Complaint is also made of the rulings of the court with reference to the testimony of a very important witness, Millie Sonnenberg, who was a domestic servant at the time of the
4. Error is assigned upon an extended instruction to the jury upon the subject of admissions, which the court prefaced with the remark, “There has been some evidence given in the case that is claimed to show an admission on the part of the defendant, which it is claimed has a bearing on the issues of
Tbe circumstances of tbe case are very peculiar. Either theory involved much of improbability and uncertainty. It was, of course, highly improbable that a man apparently of ordinary characteristics, in the interval of a few minutes in his daily affairs, should decoy his wife to an almost unused building, and plunge her into a well. It was also extremely improbable that the complaining witness should have got into that well, except by the wrongful act of some one, unless her mental or nervous condition might account for it on the theory of confusion or suicide. The balancing of these doubtful probabilities was essentially for the jury, and, while it might not have been improper for them to consider the conduct of the defendant in answering the charge against him when first made, it was not proper for the court to convey to them the idea that any words which the testimony tended to show he had used were capable of a construction either into a confession of guilt or admission of any fact tending to that conclusion. We are unable to construe the charge otherwise than to this effect. If the court did not consider that there was evidence tending to prove either an admission or a confession, a considerable part of that charge was wholly without application to the case and futile. Could or would the jury imagine that the court was indulging in mere academics ? Ought they not to believe that every word uttered to them in so important a situation was carefully considered and material to the duty they had to perform % We think they ought to, and ordinarily would, so believe, and that it is impossible to avoid the conclusion that the impression so conveyed to the jury must have been prejudicial to the accused, and may have been the decid
Since there must be reversal for the errors above specified, and since the other assignments of error are predicated upon details of the trial not likely to present themselves again in the same form, we forego their discussion' aryl decision.
By the Court. — Judgment reversed, and cause remanded for a new trial.