Kirschner v. State

9 Wis. 140 | Wis. | 1859

By the Court,

Dixon, C. J.

We are of opinion that the circuit court erred in not permitting the first four questions put to the witness Reisner, on his cross-examination to be answered by him. It appears from the record that the counsel for the state objected to these questions, and that the court instructed the witness that “ he need not answer them, unless he chose to, if his answers would tend to expose him to a criminal charge.” Under this instruction of the court the witness refused to answer, and the defendant excepted. We think the court must have misapprehended the nature and tendency of these questions, or that some mistake, as to the reasons assigned for excluding the testimony, must have intervened in settling the bill of exceptions.

It is manifest that neither of these questions tended either directly or indirectly to draw from the witness answers which in any manner could criminate him. The correct practice in such cases, is for the witness to say on his oath he believes the answer would tend to criminate him; and if he says that he does, his answer is generally taken as conclusive. In this case it does not appear that the witness was asked at all whether the questions had such tendency, and we are only led to infer that in his opinion they did have such tendency, from his refusal to answer, after receiving instructions from the court. Although the witness is the judge of the effect of his answer, and is not bound to disclose any facts or circumstances to show how the answer would affect.him, as that would defeat the rule and destroy the protection afforded by the law, yet the court is to determine under all the circumstances of the case, whether such is the tendency of the question put to him, and whether he shall be required to answer; as otherwise it would be in the power of every witness to deprive parties of the benefit of his testimony, by a merely colorable pretence that his answers to questions would have a tendency to implicate him in some crime or misdemeanor, or would expose him to a penalty or forfeiture, when it is clear, as we think it was in this case, that the questions have no such tendency.

At first sight these questions might seem open to the objection of being collatteral and irrelevant, and for that reason not permissible, even under the latitude given on cross-examination. Yet, for the purpose of showing the character of the witness and the degree of credit to be given to his testimony, we think they were proper. These were matters of the highest importance to the jury, who from the testimony were to determine the guilt or innocence of the defendant. For these purposes, questions tending to show the present or recent places of residence, occupation, association and acquaintances of the witness, of his own choice, are proper and cannot be considered as irrelevant. If in answer to the fourth question the witness had replied that he was not then known by his real name, or that he had at different times and places assumed different names, it would, unexplained, have cast a strong shadow of doubt and suspicion upon his character and credibility.

It is urged that these questions were immaterial, and that no injury was done to the defendant in excluding them, because the witness appeared, and testified in the character of an accomplice; that he stood before the jury impeached and discredited. To this it may be replied that accomplices may, and no doubt often do testify in such a manner as to give great weight to their testimony and to render it very difficult for the accused to discredit them either by their statements or the circumstances of the case itself, when if he were permitted in addition, to resort to the usual modes of impeachment, it would clearly appear that they were designing and artful witnesses, and wholly unworthy of belief. In this case, however, it appears that the witness denied that he was an accomplice, and attempted to bolster and sustain his character by stating that he took no part in the theft, but was afterwards compelled by the threats of the persons who committed the offence to receive a portion of the stolen goods.

The fifth and seventh questions, were wholly immaterial. The sixth, eighth and ninth were properly overruled, since it is evident from the whole case that answers to them would have directly tended' to degrade the character of the witness by showing that he had been guilty of an infamous crime. It is also very evident that these questions were put with a view to drawing from the witness the fact of his previous conviction and punishment for the crime of larceny, which the defendant by offering the record had attempted, but failed to establish. This was not allowable for the further reason that there was higher and better evidence.

The record of the conviction of the witness of the crime of larceny, before the recorder’s court of the city of Chicago, we think was properly excluded, for the reason that the seal of the court was annexed to the certificate of the judge, instead of being annexed to the record with the certificate of the clerk, Turner vs. Waddington, 3 Wash. C. C. R., 126.

Inasmuch as each state has a criminal code peculiar to itself, so that what may be regarded as an infamous crime in one state may not be in another; we are furthermore of opinion that the record offered in this case was defective in not containing a copy of the indictment upon which the conviction is alleged to have taken place. Without the indictment it is impossible for the oreign tribunal to know the nature for degree of the offence, or whether it was an offence denominated infamous or not in the state where it is to be used.

The judgment of the court below is reversed and a venire de novo awarded.