133 Wis. 453 | Wis. | 1907
The first error assigned is that the court erred in the reception and rejection of evidence, and this is attempted to be supported by showing that the court, against repeated objections of defendant’s counsel, permitted the district attorney to ask leading questions of the complaining witness, and permitted the district attorney to ask the witness Erick Erickson if he drank anything yesterday. We consider these rulings within the discretion of the court below and insufficient to support the assignment of error.
The third assignment of error is that the court erred in permitting the complaining witness to hold a baby in her arms on exhibition before the jury while giving her testimony. There was no attempt to offer the bahy in evidence or to exhibit it to the jury, and the supposed infraction of the legal rules consisted merely in permitting the complaining witness to hold her baby in her arms while giving her testimony. This was not error, and does not bring the case within the rule of Busse v. State, 129 Wis. 171, 108 N. W. 64,,and cases cited.
The fourth assignment of error is that “the court erred in its remarks before the jury in ordering the arrest of the defendant’s witness Erick Erickson and in directing the clerk to set aside his, Erick Erickson’s, naturalization papers.” It is argued that this affected the credibility of the witness with the jury. The witness Erick Erickson was called on behalf of the defendant, and, after having been warned by the court of his right to refuse to incriminate himself, testified that he had unlawful sexual relations with the complaining witness during March and April, 1905. Upon cross-examination by the district attorney he testified substantially that he had been arrested and convicted for drunkenness,
“No man can become a citizen of tbe United States unless be proves by two witnesses that be is a man of good moral character and well behaved. Tbe statement be has made here shows that be is not well behaved. Tbe objections to tbe remarks, of tbe court in ordering tbe witness arrested and with regard to setting aside bis naturalization papers are overruled. He is ordered arrested for tbe crime of fornication, and :the clerk is instructed not to give him bis citizenship papers.”
'The jury were instructed to disregard this arrest and tbe withholding of tbe naturalization papers in weighing tbe evidence. While tbe district attorney might have chosen a more appropriate time and place for tbe arrest of tbe witness on bis own confession, a witness who takes tbe stand and flaunts bis own-crime brazenly in tbe face of tbe public, tbe court, and tbe jury is sometimes made an example of in this way. Tbe writer has known this to be done several times at tbe circuit. Logically considered, tbe arrest of tbe witness, if tbe jury believed that tbe arrest was right, would tend to- tbe exculpation rather than tbe incrimination of tbe defendant in tbe bastardy case, for tbe court charged tbe jury on this subject as follows:
“The evidence of tbe defendant tends to show that tbe witness Erick Erickson also bad sexual intercourse with said Eva Sahanen during tbe months of March and April, 1905.*457 If you believe said evidence, and that another man than Johnson had sexual intercourse with the said complaining witness, Eva Sahanen, during the months of March and April, 1905, then you will find the defendant Thomas Johnson not guilty. The fact that the said Erickson was arrested for the crime of fornication and that his citizen papers were withheld should not prejudice you in this case, for you will disregard both facts in weighing the evidence.”
This is not like the arrest of a witness for perjury committed while on the stand. The latter assumes that his testimony is false, while the former assumes that his testimony is true. But under the foregoing circumstances, where proper instructions were given to the jury, we must decline to hold this assignment of error good. Secs. 4659, 4706, Stats. (1898).
The 'fifth and sixth assignments of error are argued together and are to the effect that the court erred in not discharging the defendant when the state closed its case in chief .and also when the testimony was closed. The bill of exceptions is not certified to contain all the evidence. It is argued that this certification of the bill of exceptions is approved in 2 Winslow’s Forms, Ho. 1994, p. 1211, and note 10, but •counsel has not read this form aright. Looking into the evidence, however, we find that the complaining witness contradicted the evidence given by Erickson, and that there is in the record evidence sufficient to go to the jury, and, if the jury believed it, to support a verdict against the defendant.
The seventh and eighth assignments of error contain nothing not covered by the previous rulings except that under the name of “newly-discovered evidence” counsel for defendant produced the record of the conviction of Erick Erickson on June 22, 1906, for the'offense of fornication with the •complaining witness alleged to have taken place on March '31, 1905. It is claimed that this conclusively established the latter fact, and therefore no jury could determine who was the father of the child, even if they were to believe the tes
By the Court. — The judgment of the circuit court is affirmed.