97 Wis. 627 | Wis. | 1897
1. The contention made by the plaintiff in error, that the law creating the municipal court for the eastern district of Waukesha county was unconstitutional and void, in that it did not provide for a jury to be summoned from the entire county, but only from said eastern district, and that, being a. municipal court, its jurisdictional limits must be co-extensive with the boundaries of some municipality, and other like objections, as well as that the law attempts to confer judicial powers upon the clerk of the court, were considered in the case of Shaffel v. State, ante, p. 377, in respect to the validity of substantially the same legislation in regard to the municipal court for the western district of Waukesha countjq and overruled. The determination of the court in that case disposes of the similar objections now urged by the plaintiff in error, and it is not necessary to give them further attention.
2. The court properly charged the jury that the stealing
3. We think that it was error to admit in evidence the testimony given on the preliminary examinations of Ernest Sweet and Charles Grimshaw. It is contended that it was offered and admitted to impeach the testimony of Sweet and Grimshaw after they had been examined as witnesses for the defendant, but the record fails to show that the purpose for which it was offered and received was thus limited. These examinations were brought forward by the testimony of the two stenographers, W. A. Pierce and Margaret Gaynor, and offered in rebuttal. Sweet stated in his testimony, on his examination, and in his preliminary statement: That Grim-shaw was one of the three persons that went to the chicken house. That “there were three of us. We came to this place, went in there, and killed eleven or twelve chickens,, .and put them in a bag. We were going out. Grimshaw , and I was in the coop. Saw somebody down near the road.
We jumped over the fence, started to run, dropped the bag. Did not know the third man, but the three left Waukesha together. Had seen him three or four times.” The testimony of Sweet on defendant’s trial, in connection with his testimony on the preliminary examination, tended strongly to show that the defendant, Pooler, was one of the party. Grimshaw made a preliminary statement upon his examination, saying: “ I plead guilty to what I have done, but there were three of us,— Orrin Pooler, Ernest Sweet, and myself.” Being sworn upon such examination, he said: “They got
The evidence thus brought into the case in rebuttal, as the record shows, was strongly inculpatory of the defendant, Pooler, and tended directly to show that he was guilty of the oifense with which he is charged. The parties who had given the evidence offered were still living. It does not appear that Pooler, the accused, was present' at either of the examinations, or when this testimony was given, or that he had any opportunity to cross-examine either Sweet or Grim-shaw. .It may be conceded that some of the evidence thus offered and received might be, or was, competent to impeach the testimony of Grimshaw and Sweet as witnesses for the accused, but it was all put in without discrimination, and without pointing out any particular part of it as competent or offered for that purpose. The accused objected to it as incompetent, irrelevant, and immaterial. The time for receiving evidence in chief in support of the charge had passed. It was received in rebuttal, and in violation of the right secured to the accused by sec. 7, art. I, of the constitution, to meet these witnesses face to face, and the important right to cross-examine them. The-reception of such evidence, in the manner stated, was error, and requires a reversal of the conviction.
By the Court.— The judgment of the municipal court for the eastern district of Waukesha county is reversed, and the
A considerable portion of the evidence, and the rulings of the court thereon, are not printed. I confess that I have not read the manuscript record. I am confident, however, as I expressed myself in consultation, that in so far as the verified stenographer’s minutes were put in as mere impeaching evidence after the proper foundation had been laid, there was no error, and, in so far as they are substantially the same as the accused swore to himself upon the stand, the admission of them is not reversible error.
The only reason given for reversing the judgment is the ruling on the objection of defendant’s counsel to the evidence< given on the preliminary examinations •of Sweet and Grimshaw. As my brethren appear to understand such evidence, I should concur in the decision rendered, but as I understand it, after a most careful study of the same, ■not even a shadow of prejudicial error, by reason of the ad-’ mission of it, exists. True, it tended to show that the three persons, Grimshaw, Sweet, and the accused, were all concerned in the offense, but, before it was offered, the accused testified in his own behalf to the movements of the three on the night of the burglary, from the time they started out •on the expedition up to and including the commencement of the offense, the same in all essential particulars as Grimshaw and Sweet testified before the justice, except some testimony that tended in an indefinite way to show that the accused went to the hen-coop door, or into the coop, while his testimony was only to the effect that he took care of the team
Sweet and Grimshaw testified on the trial, both agreeing, that the subject of stealing the chickens was discussed before •any one got out of the wagon, and that finally all jumped out, and, while they (Grimshaw and Sweet) went in after the poultry, the defendant stood guard near the team with a stone, or, as Grimshaw put it, “ outside with a stone.” Their testimony did not differ in any essential particular from what they testified to before the justice, except, as stated, there was some not very distinct evidence on the former occasion that the accused went to, or into, the hen house. But a fair ■consideration of the whole evidence then given leaves on the mind only the impression that the testimony of the three at the trial, and the two at the preliminary examinations, are all in substantial accord to the effect that “all were in the scheme together,” and that the two, Grimshaw and Sweet, went into the coop and got the chickens, while Pooler remained outside' and took care of the team and gave the alarm when it became necessary. True, “ the testimony of Sweet on the defendant’s trial, in connection with his testimony on the preliminary examination, tended strongly to show that the accused was one of the party; ” but it appears to be overlooked, hence not stated in the opinion, that Sweet was called as a witness for the accused, not by the state, and that his testimony, in effect, went no further than to ■corroborate the defendant. True, Grimshaw said on the preliminary examination: “¥e were all in the scheme. We left the house together. Grimshaw and I went in and took the chickens, and Pooler stayed outside with a stone in his hand to keep guard, and we were all in the scheme. Sweet went in first, I afterwards, and the other feller did not
As the dissent here recorded goes largely on differences as to the condition of the record, we will go a little more fully into it, giving the words of the witnesses. Pooler testified that after discussing the subject of committing the offense, while the team was in the road opposite the hen coop, “ We jumped out and they tools a sach and went over and into the hen house. These are the men [Sweet and G-rimshaw] 1 saw talce the chickens. That is what they said. When they, went into the coop, I Gould not say I saw the chiclcens stolen. When they went in they dosed the door¡ it squeaked. I was about five rods from the coop. I drove the team up the road and left them and jumped over the fence and ran into the woods.” Sweet, as a witness for the accused, agreed with him in every respect up to the time “ all jumped out of the wagon,” and then said: “We [meaning Grimshaw and the witness] went over and took the chickens while Pooler stayed with the rig. He took care of the rig while we went in.” G-rimshaw, as a witness for the accused, agreed with his two associates as to the occurrences up to the time “ all jumped out of the wagon,” then said: “ Sweet and I went in. We started to pull the door shut; it made a noise. Pooler stayed
Now, without further quoting the evidence, suffice it to say that in every particular, where that of Grimshaw and Sweet differed on the first from that on the second occasion, the proper foundation was laid to 'prove the former testimony by Avay of impeachment. Differences existed which, in the judgment of the prosecutor, rendered the offer of the evidence objected to advisable; but such differences did not affect the issues, as all agreed that defendant actually cooperated with his associates from first to last.
But it is said that though some of the evidence was proper as impeaching, the offer was not limited. If the trial court had rejected the entire offer on that ground, it would have been proper, as we shall hereafter show. But it was as-
Again, as all of the evidence that was not admissible as impeaching agreed with what the witnesses had already testified to, the accused was not prejudiced. It is only for prejudicial errors that judgments can properly be reversed, and that, under our statute on the subject, applies to criminal as well as civil cases. R. S. sec. 2829; Olson v. Solveson, 71 Wis. 663; Odette v. State, 90 Wis. 258; Jackson v. State, 91 Wis. 253. It is rightly said by Dixon, O. J., in an early case, that “ this is a beneficent statute, which cures a multitude of errors.” We may add that it should always be recognized and applied to the end that justice be made-certain and speedy, instead of being hindered, delayed, and made burdensome to parties by disturbing judgments for-errors that prejudice no substantial right. That was its plain intent and purpose. It has been so applied by this court over and over again, and not too frequently. Olson v. Solveson, supra; Best v. Sinz, 13 Wis. 243; Krueger v. Merrill, 66 Wis. 28; Neilon v. Marinette & M. Paper Co. 15 Wis. 579; Little v. Staples, 98 Wis.
It is said the defendant had the right to meet the witnesses face to face, and the admission of the evidence under discussion violated a constitutional right. But the witnesses were in court; they had been upon the stand. The stenographers were put upon the stand and testified to the general correctness of the testimony as taken down by them. The right of cross-examination of all such witnesses, face to face, existed to the fullest extent. Of course it was not improper-to prove what a witness said on a former occasion, by way
So the simple question is, Can it be said that the mere fact that the evidence testified to as correct by the stenographers who took it was read by some one other than the stenographers, was'prejudicial error? It would seem that there could be but one reasonable answer to .the question, and that the citation of authorities would be needless. In Hair v. State, 16 Neb. 601, it was said, in effect, that when it is proper to prove the evidence of a witness taken on another occasion, the person who took such evidence, after testifying to the correctness of his minutes, may read them to the jury. In People v. Murphy, 45 Cal. 137, it was said on the same- subject, that after the stenographer has testified to the substantial correctness of his minutes, they may be read in evidence instead of having him testify to what the witness said, using the minutes to refresh his memory. And again, in Cornell v. Green, 10 Serg. & R. 14, it was said, in effect, that when the witness’ evidence may properly be produced, it is sufficient to prove by the person who took such evidence that his minutes contain the evidence in substance;.
We may safely venture that no well-considered case can be found contrary to the views above expressed, on the strength of a most thorough examination to find such, and failure so to do, and the failure of my brethren in the same field.
Prom the foregoing it must appear that all that part of the preliminary examination, for the introduction of which a proper foundation as impeaching evidence was laid, was properly admitted, and that the balance, if erroneously admitted at all, was harmless error. But if it were otherwise, there is a most perfect answer, in our judgment, to the assignment of error, in that the objection was general. If any material part of the evidence offered was competent for any purpose, the balance with which it was mixed was not reached by a general objection. It was discretionary on the part of the trial court to require the party offering the evidence to specify the particular' part which was admissible, and offer that by itself, and, if he failed so to do, to reject the entire offer; or, the court might have compelled the objecting party to specify the particular part objectionable, and for failing so to do, by merely insisting on the general objection, admit the whole. Mr. Jones, in his valuable work on Evidence, says that “ it is a familiar rule that a mere general objection to testimony as a whole does not avail when part of the testimony is admissible.” See § 897, and a large number of cases to support the text. The same principle applies that governs in case of a general exception to findings, where some are proper, or a general exception to a charge including several propositions, where some are. not subject to exception, or a general exception to a refusal to
In my opinion the judgment should be affirmed.