125 Wis. 444 | Wis. | 1905
After tbe jury bad retired for deliberation as to their verdict in tbe case they sent a communication to-tbe presiding judge, through tbe bailiff having them in charge,, requesting him to come before them for tbe purpose of answering some inquiries concerning tbe case. Tbe judge responded by stepping into tbe doorway of tbe room where they were deliberating, whereupon a juror propounded some questions to him as to tbe right of immunity of persons who bad.
“As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at all is proper; and, if it was not, the party against whom the verdict was, is entitled to a new trial.” “No communication whatever ought to take place between the judge and the jury, after the cause has been submitted to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel of the cause.” “It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it. The only sure way to prevent all je.alousies and suspicions is to consider the judge as having no control over the case, except in open court, in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the inconvenience of jurors is of small consideration compared with this great object.”
These rights are clearly of an important nature and affect the substance of a jury trial and the right of a party to be heard and to bring in review every transaction of the court’s proceeding. Eor the attainment of the best administration of justice, the law requiring that all proceedings of courts be open and public and in the presence of the parties or their representatives must be strictly enforced; and, in case of any infringement of-this policy, parties are not to be put to the burden of showing that it in fact injured them, even though it be manifest that no improper motives prompted the acts •complained of. We are constrained to hold that the communications had between the jury and the judge in the case after 'the jury had retired to deliberate upon the verdict were prejudicial and constitute reversible error. Watertown B. & L. Co. v. Mix, 51 N. Y. 558; Read v. Cambridge, 124 Mass.
Error is assigned upon, tbe rulings of tbe court refusing to-compel tbe district attorney to produce tbe record of tbe clerk of tbe grand jury, containing minutes of tbe testimony of tbe plaintiff in error given before tbe grand jury, and in excluding tbe testimony of grand jurors to prove wbat be testified to before tbem pertaining to tbe transaction for wbicb be-is on trial. Plaintiff in error claims tbe benefit and immunity from prosecution and punishment of sec. 4078, Stats. 1898, as amended by cb. 85, Laws of 1901, upon tbe ground that be is now being prosecuted for and on account of a transaction concerning wbicb be theretofore gave testimony before a grand jury of-Milwaukee county. Upon tbe trial be offered evidence tending to show that tbe clerk of tbe grand jury kept minutes of its proceedings, including minutes of bis testimony given before tbem, and that such minutes were then in-tbe custody of tbe district attorney for Milwaukee county; and be demanded that they be produced for tbe purpose of using tbem to show that be gave testimony before tbe grand' jury concerning tbe transaction for wbicb be is now being prosecuted. Tbe court ruled that upon tbe trial of plaintiff in error tbe proceedings before a grand jury are privileged from being adduced as evidence to show bis immunity under-these statutes. This presents, tbe same question recently passed upon by this court in tbe case of Murphy v. State, 124 Wis. 635, 102 N. W. 1087, where it was held that, if otherwise unobjectionable, such evidence is admissible as evidence to establish tbe defendant’s immunity from prosecution. This case must be held to be ruled by that case on this question. Tbe record shows that tbe decision on appeal in that case was rendered subsequent to tbe trial of this case, wbicb explains-
It is urged that proof of the defendant’s testimony given before the grand jury may be made by offering the records of the grand jury’s proceedings as kept by the stenographic reporter, upon the ground that they are statements made by officials in pursuance of official duty. Such reports and min
.“It is to-day generally understood that' there are two sorts of recollection which are properly available for a witness — • past recollection and present recollection. In the latter and usual sort the witness either has a sufficiently clear recollection, or can summon it and make it distinct and actual if he can stimulate and refresh it, and the chief question is as to the propriety of certain means of stimulating it — in particular, of using written or printed notes, memoranda, or other things as refreshing it. In the former sort [past recollection] the witness is totally lacking in present recollection and cannot revive it by stimulation; but there was a time when he' did have a sufficient recollection and when it was recorded, so that he can adopt this record of his then existing recollection and use it as sufficiently representing the tenor of his knowledge on the subject.”
This is the basis of the rule upheld in Nehrling v. Herold Co. 112 Wis. 558, 88 N. W. 614, namely:
“The statement of the witness and the contents of the paper together are equivalent to the present positive statement of*452 tbe witness affirming tbe truth of tbe facts stated in tbe memorandum.” Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Hazer v. Streich, 92 Wis. 505, 66 N. W. 720; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; People v. Murphy, 45 Cal. 137.
Access to tbe records of these minutes and stenographic reports of grand jury proceedings by counsel of tbe accused are controlled by tbe rule of secrecy pertaining to grand jury proceedings, and tbe usual practice of permitting inspection of records or memoranda, by limiting it to such portions as are actually used in tbe evidence, and in such manner and at such times during tbe progress of tbe trial as tbe trial court may direct.
By the Gourt. — Tbe judgment is reversed and tbe cause is remanded for a new trial.