81 Wis. 127 | Wis. | 1892
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
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 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
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 ap
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 circum
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.