12 Wis. 532 | Wis. | 1860
By the Court,
Tbe only point raised by tbe exceptions appears to tbe court clearly in favor of tbe prisoner. He was indicted under tbe provisions of sec. 2 of cbap. 172 of tbe Eevised Statutes, as for a substantive felony, being charged as an accessary before tbe fact to tbe crime . of arson, said to bave been committed by burning tbe barn of one John Bourcies in tbe county of Portage. This and tbe succeeding section are borrowed from section 9, cbap. 64, of tbe English Statutes, 7 Geo. IY. It enacts that every person who shall counsel, hire, or otherwise procure, any offense to be committed, which shall be a felony, may be indicted and convicted as an accessary before tbe fact, either with tbe principal felon, or after tbe conviction of tbe principal felon, or be may be indicted and convicted of a substantive felony, whether thdprincipal felon shall or shall not bave been convicted, or shall or shall not be amenable to justice, and in tbe last mentioned case, may be punished in tbe same manner as if convicted of being an accessary before tbe fact. Sidney Wright, who, it is alleged in tbe indictment, was tbe principal felon, bad made bis escape, and it does not appear that any indictment was ever preferred against him.
Tbe felony is charged to bave been committed by Wright on tbe 31st day of August, 1859. Tbe only evidence offered on tbe trial, of tbe guilt of Wright, was bis admissions made to Darius Dodd and Stiles Wheeler, two of tbe witnesses produced and sworn on tbe part of tbe state. Dodd testified that
It is very evident tbat upon this testimony tbe conviction cannot be sustained. In order to establish tbe guilt of Ogden, it was first incumbent on tbe prosecutor to prove tbe guilt of tVrigbt as alleged in tbe indictment. This done, be must then prove tbat Ogden previously procured, hired, advised or commanded Wrigbt to commit tbe felony. Both ’ these facts must be established by competent evidence. Now, however tbe confessions of Wright, as to tbe first, might have been used against him, bad be been indicted and put upon bis trial, it is very evident tbat as against Ogden they were wholly inadmissible. As to Mm they were mere hearsay, and open to all tbe objections which exist to tbat kind of testimony. For however clearly it may have appeared tbat Ogden counseled and advised Wrigbt to commit tbe offense, yet if Wrigbt never did so in point of fact, and tbe barn was set on fire by some one else, or by other means, then Ogden was innocent of tbe crime with tbe commission of wMcb be stood charged.
If such admissions were to be received, Wrigbt, after tbe advice was given, but without having acted upon it, and being innocent, and believing, tbat bis personal safety would not thereby be endangered, might make them, from' feelings of ill-will and hatred to Ogden, for tbe sole purpose of deceiving and misleading others, and betraying him into tbe conviction of an offense of which be knew him to be innocent. They were made privately, and without tbe sanction of an oath; tbe jury bad not tbe advantage of observing bis deportment, or tbe manner in which bis statements
Tbe judgment of the circuit court is reversed, and a ven-ire de novo awarded.
