Hamilton v. State, 171 Wis. 203

Hamilton v. State

171 Wis. 203 | Wis. | 1920

Síebecker, J.

The introduction of the case as printed in vol. 154 N. W. Rep., pertaining to the decision of the supreme court of Michigan discharging the defendant from imprisonment for a conviction of á felony, was improper, since such conviction, was admitted on the trial. His former conviction is competent evidence only under sec. 4073, Stats., and such conviction can only be proven by his own cross-examination or by the record. It being admitted on the *207record that he had been convicted and discharged on habeas corpus proceedings, it is readily perceived how the printed case of the proceeding in the Michigan supreme court might be the source of prejudicial inference where the identity of the person who did the shooting at the oil house was the grave and important issue on trial.

It is urged that the court erred in receiving the testimony of officers Yanne and Harms, who testified to a description Mervil Peil gave them of the man he saw leaving the oil house. True, this evidence was not objected to, but it is proper to be considered in connection with the other evidence in the case on the question raised whether or not the competent evidence in the case sustains the conviction beyond a reasonable doubt.

The all-important inquiry for determination by the jury was the fact of identifying Hamilton as the man who came out of the oil house immediately after the shooting. On this point the record rests on the evidence of the boy Mervil Peil. The evidence of these officers is but a repetition of what Peil stated to them. This kind of evidence has been hqld to be hearsay and incompetent. O’Toole v. State, 105 Wis. 18, 80 N. W. 915; Gillotti v. State, 135 Wis. 634, 116 N. W. 252.

Under the circumstances of the case it is most likely that it was given much weight by the jury to corroborate the testimony of Peil. A study of the testimony 'of Mervil Peil discloses that he at no time expressed a positive conviction that the defendant is the man he saw coming out of the oil house immediátely after he heard 'the shooting. He gave the following description of his appearance by which to identify him: “I could see how he was dressed; he had a short knee coat.on, and fiat-topped,cap with rounded sides,- and he had his coat collar turned up and his ear-laps down.” He states that he could not see the man below the knees because of a snow bank about two feet high.' -After viewing the man in this manner the boy started hurriedly to re*208port the occurrence to the police without another view of the man at that time. Later in the evening, after the defendant had been arrested and was exhibited to Peil with a number of other men at the police station, Peil states he was asked by the police, referring to the men before him, “What man he saw running away from the filling station?” On the trial he was asked the question, “How was the defendant dressed that night at the police station?” Answer: “Well, he had a coat on, a cap with rounded sides, a flat-topped cap, and he had also khaki pants and leggings on — and overcoat up about to his knees.” In answer to a question if he saw any one at the police station “dressed similar to the man” whom he saw leaving the oil house he answered: “Well, Mr. ■ Hamilton was the only man that looked something like him. He was the only man that was dressed mostly like him that left the filling station.” This is as near as Peil could identify the man he saw coming from the oil house at the time and occasion. The testimony of the witness Larsen, who was confined to the jail and occupied a cell opening on the same aisle as did defendant’s cell, is that the cells were left open one night in March and that about midnight, while he walked in the aisle, he heard defendant praying for about ten minutes or so in indistinct speech and understood defendant to say “Oh, God, why did I kill this man? Oh, God, forgive me;” that he did not see the defendant at the time he heard the words, nor could he tell whether or not he was asleep. All the other evidence in the case consists of circumstances surrounding the shooting, facts and incidents of the defendant’s life, his whereabouts, on the evening of the murder, his conduct when arrested and when subject to identification by the police on the same evening. The state, in addition to the foregoing testimony, lays stress on the impeachment of defendant’s testimony by his former conviction and many contradictions' on the witness stand. The state also urges that the following facts elicited on the trial showing falsification by defendant tend to prove that *209Hamilton was the man who committed the murder: that he gave his name when arrested as Eli J. Long, when in fact he lived in Racine under the name of George E. Hamilton; that he testified at length that his real name is Eli J. Long and that he changed it to Hamilton, but that in 1917 he again changed it to Long; that he falsified as to how he traveled in going from his residence to the postoffice on the evening in question; as to the places he had resided in Racine before this evening; as to the treatment of him by-police officers after his arrest and before being released on the evening of the shooting; about carrying money in his sock on the evening of the shooting.

We have searched the evidence and there is no evidence of direct proof that defendant is the man who fired the shots that killed Warner, except the testimony of Peil as above stated. True, the evidence pointed out by the state as tending to show that defendant made false statements in the respects referred to may have been considered by the jury as tending to indicate guilt, but even in this view of the case it is not sufficient, in connection with Peil’s and Larsen’s testimony, to remove from our minds the impression that it lacks convincing power, and has not the probative weight to justify defendant’s conviction beyond all reasonable doubt. - Furthermore, the. testimony of the Gressing sisters as exhibited by the affidavit on the motion for a new trial for newly discovered evidence is important in view of the unsatisfactory state of the evidence on the subject of defendant’s identification. Under the broad .powers conferred on this court by sec. 2405m, Stats., we find it impossible to say that the evidence on the main controversy was all before the jury and that upon the record before us we are satisfied, that justice has been done by the conviction of the defendant.

As declared in Gerke v. State, 151 Wis. 495, 139 N. W. 404, a person convicted of a crime has the right to demand the solemn judgment of this court as well as that of the trial *210court as to whether his guilt was sufficiently proven. See, also, Lonergan v. State, 111 Wis. 453, 87 N. W. 455; Koscak v. State, 160 Wis. 255, 152 N. W. 181; Kuhl v. State, 167 Wis. 495, 167 N. W. 743.

By the Court. — The judgment of the circuit court is reversed, and the action remanded for a new trial. The warden of the state prison will deliver the plaintiff in error into the custody of the sheriff of Racine county, who will hold him in custody to await the further order of the court.