Jackson v. State

81 Wis. 127 | Wis. | 1892

Cassoday, J.

It appears that there was a former trial of this case, and the jury disagreed. Upon that trial the complaining witness, William Summers, was examined as a witness on the part of the state, and cross-examined on the part of the accused. After that trial, and before the last trial, that witness had died; and his testimony, as taken by the stenographer on the former trial, was admitted in evidence upon this last trial against objection. It is claimed that such ruling was an infringement of a right secured to the accused by that clause of the constitution of this state which, declares that “ in all criminal prosecutions the accused shall enjoy the right ... to meet the witnesses face to face.” Sec. 7, art. I.

This language is quite similar to that contained in art. YI of the amendments to the constitution of the United States. In State v. Cameron, 2 Pin. 499, Stow, C. J., said': “ The trial by jury, as it existed of old, is tbe trial by jury secured by our national and state constitutions. It is not grcmted by these instruments; it is more,— it is secured. It is no American invention. Onr fathers brought it with them to this country more than two centuries ago, and by making it a part of the constitution they intended to perpetuate it for their posterity, and neither legislatures nor courts have any power to infringe even the least of its privileges.” That language is quoted approvingly by Ryan, C. J., in In re Eldred, 46 Wis. 553.

Thus it appears that the right of the accused to meet the witnesses face to face was not granted, but secured, by the constitutional clauses mentioned. It is the right, therefore, as it existed at common law that was thus secured. That right was subject to certain exceptions. One of these exceptions was that the declarations of a murdered person, made when he was at the point of death and every hope of this world gone, as to the time, place, and manner in which, and the person by whom, the fatal wound was given, are admissible in evidence, notwithstanding such deceased person was not sworn nor examined, much less cross-examined. This court has frequently held that the constitutional clause quoted is no bar to the admission in evidence of such declarations. State v. Cameron, 2 Pin. 490; Miller v. State, 25 Wis. 387; State v. Martin, 30 Wis. 223; State v. Dickinson, 41 Wis. 308. In these cases it is, in effect, said that such rule as to the admission of such dying declarations was well settled before the adoption of our constitution, and that the same was not abrogated by the clause of the constitution quoted. .

The testimony of a deceased witness, given upon a former trial, would seem to be admissible upon the same theory. “ The chief reasons for the exclusion of hearsay evidence,” says Mr. Greenleaf, “ are the want of the sanction of an oath and of any opportunity to cross-examine the witness. But where the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties.” 1 Greenl. Ev. § 163. In speaking of criminal cases, Mr. Cooley says: “ If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he. was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.” Cooley, Const. Lim. (6th ed.), 387, citing numerous cases. The attorney general cites numerous cases under similar constitutional provisions to the same effect.

Of course, to be admissible, such former testimony should be established or identified with reasonable, certainty. Here the stenographer testified, in effect, that while he did not recollect the fact, yet that he thinks he took down all the questions put to the witness, and his answers, and that he believed they were substantially correct. Counsel contend that this was not sufficient to authorize such admission, within the rule of Zitske v. Goldberg, 38 Wis. 216, and Elberfeldt v. Waite, 79 Wis. 284. In neither of those cases had such testimony been taken down by the official court reporter. In each it was taken down by a justice of the peace. In the former it was said by the present chief justice that “ the minutes of testimony taken by a justice of the peace on a trial before him are subjected to no such scrutiny [as in a bill of exceptions], and possess, none of these important and essential elements of verity. On the contrary, they are made in the haste and confusion of trials, generally by men who are quite unused to the business; and no power to make corrections after the trial is vested in any one. Hence the reasons for admitting such testimony when it is found in a settled case or bill of exceptions, entirely fail when the offered testimony is contained in the justice’s minutes.” Mr. Greenleaf says that “ it was formerly held that the person called to prove what a deceased witness testified on a former trial must be required to repeat his precise words, and that testimony merely to the effect of them was inadmissible. But this strictness is not now insisted upon in proof of the crime of perjury; and it has been well remarked that to insist upon it in other cases goes in effect to exclude this sort of evidence altogether, or to admit it only where, in most cases, the particularity and minuteness of the witness’ narrative, and the exactness with which he undertakes to repeat every word of the deceased’s testimony, ought to excite just doubts of his own honesty and of the truth of his evidence. It seems, therefore, to be generally considered sufficient if the witness is able to state the substance of -what was sworn on the former trial. But he must state in substance the whole of what was said on the particular subject which he is called to prove.” 1 Greenl. Ev. § 165. Since the proof of such former testimony may be different upon a new trial, it becomes unnecessary, in the view we have taken of the case, to say more about it here.

At the time of the arrest Mr. Tullar was the district attorney, and conducted the proceedings before the examining magistrate. He also appeared on the defense for the officer in the replevin action. We do not think such appearance precluded him from assisting the new district attorney upon the last trial. The replevin suit necessarily involved substantially the same facts, and not to have appeared in that suit would have placed him at a great disadvantage when he came to the trial of the criminal case. Having become thus equipped, it'was certainly very proper that he should be continued in the’case to its completion.

Error is assigned because the court, among other things, charged the jury that “the defendant has given evidence on this trial tending to show that, prior to the time of the alleged commission of the offense charged against him, his general reputation in the community where he resided and was known was that of an upright, honest man; and the testimony stands uncontradicted. Formerly this evidence was only received in cases where there was some doubt of guilt. That was the equivalent, almost, of holding that evidence of good character could only be received in cases where it was unnecessary for the defendant to introduce the same to secure an acquittal. . . . But, where a clear case of guilt is made out on the proof, evidence of prior good character is, comparatively speaking, of little importance. It is a matter of common knowledge that men who have sustained excellent characters for honesty have been detected in the commission of serious crimes, and when they are so detected, and their guilt clearly proved beyond a reasonable doubt, then prior good reputation should not shield them from just punishment.” We are constrained to hold that some of these expressions in the charge, as applied to the facts in the case, tended to mislead the jury into the belief that this was a case in which good character was of very little or no importance. It is true that a somewhat similar expression in a charge was sustained in State v. Leppere, 66 Wis. 359, 360, but in that case the evidence, though .conflicting, was direct. It is there said that, “ whenever such evidence, in connection with all the testimony in the case, is sufficient to generate a doubt, then the prisoner is entitled to the benefit of it, regardless of whether such other evidence on the part of the state is direct or circumstantial.” ' In a portion of the charge in the case at bar not quoted, it is strongly intimated that evidence of prior good character is particularly important in “ cases resting upon circumstantial evidence.” The evidence in the case at bar is all circumstantial. The court was requested to charge, in effect, that in such a case “ evidence of good character should have great weight with the jury,” and that they “ should carefully consider the good character of the defendant with the other evidence in the case,” and that if, after such careful consideration, they should have a reasonable doubt as'to the guilt of the accused, then it was their duty to acquit. It is true that instruction, as requested, appears to be objectionable in attempting to qualify the evidence by the word “great,” but it called the attention of the court to the fact that the evidence against the accused was all circumstantial, and hence that evidence of good character was of special importance. It was therefore error not to give some such instruction. Conners v. State, 47 Wis. 527. There are some things in the case well calculated to generate grave doubt, as to the guilt of the accused, and hence what was said in the charge about evidence of good character being of little importance where a clear case of guilt is made out on the proof, had no application to the case on trial, and hence naturally tended to mislead the jury.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.