Porath v. State

90 Wis. 527 | Wis. | 1895

Pinney, J.

1. The plea in abatement to the first count of the information was properly overruled. It appeared that both counts were founded upon the same transaction, and were introduced, to meet the legal aspects of the evidence as it might be produced at the trial, and in order that the defendant might not escape conviction of any offense which it might be found the defendant had committed by the single transaction in question. The statute (sec. 4653, S. & B. Ann. Stats.) makes it the duty of the district attorney to inquire into and make full examination “of all facts and circumstances connected with any case of preliminary examination as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail, or become recognized or held to bail, and to file an information setting forth the crime committed, according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not.” The facts disclosed upon the preliminary examination of the defendant warranted the district attorney in filing an information against the defendant for rape committed against the person of his daughter, and he had the right to add a count for the crime of incest, under sec. 4582, charged in the complaint on which the examination was held, to meet the legal aspects of the evidence as it might be produced at the trial. State v. Leicham, 41 Wis. 574. Both counts were founded on the same transaction, and the defendant had in fact had a preliminary examination upon the charge of incest.

2. The two counts contained in the information were properly joined. The statute provides (R. S. sec. 4650) that “ different offenses, and different degrees of the same offenses, may be joined in one information, in all cases where the same might be joined by different counts in the same indictment; and in all cases the defendant shall have the same rights as to all proceedings therein as he would have had if prosecuted for the same offense upon indictment.” Under the statute (sec. 4695), where any one indicted or informed against for felony shall on trial be acquitted by verdict of part of the offenses charged, and convicted of the residue, the court is required to receive and record the verdict ; “ and thereupon the person charged shall be adjudged guilty of the offense, if any, which shall appear to the court to he substantially charged by the residue o| such indictment and information, and shall be sentenced and punished accordingly.” This provision applies to the case of a single count in which the lesser offense is included in or may constitute a part of the greater one, of which the defendant has been acquitted. Accordingly, it has been held in Massachusetts, where substantially the same statutory provisions exist, that one indicted for rape may be convicted of a simple assault. Comm. v. Drum, 19 Pick. 479; Comm. v. Dean, 109 Mass. 349. And in general the rule is, in states where similar statutory provisions exist, that counts for a kindred line of offenses, if the subject of indictment or information, may be joined. It is always allowed where several counts are required for the purpose of meeting the evidence as it may transpire on the trial, where all the counts are substantially for the same offense or founded on the same transaction. Comm. v. McLaughlin, 12 Cush. 612, 614; People v. Rynders, 12 Wend. 426; 1 Bish. Crim. Proc. (3d ed.), §§ 426, 427, 446; Comm. v. Jacobs, 152 Mass. 281; Butler v. State, 91 Ala. 87. The sentence or conviction is or may be separate on each count. If the varying counts comprehend only one transaction, their joinder and one trial on all are not objectionable, since the form of the verdict is under the authority of the court, and sentence or conviction is or may be separate on each count. 1 Bish. Crim. Proc. (4th ed.), §§ 425, 453. Nor does it vary the case that one offense is a felony and the other a misdemeanor, one being a part of the same transaction with the other. Whart. Crim. Pl. (9th ed.), §§ 284, 291; Reg. v. Ferguson, 6 Cox, Crim. Cas. 454. Felonies and misdemeanors forming a part of the development of the same transaction may be joined. Hunter v. Comm. 79 Pa. St. 503; Hawker v. People, 75 N. Y. 487; Comm. v. Costello, 120 Mass. 358. The court, to protect the defendant from being prejudiced or embarrassed in his defense by such joinder, may quash part of the. counts, or put the prosecutor to elect, or otherwise, in the exercise of a sound judicial discretion. In the case of State v. Shear, 51 Wis. 460, relied on by the plaintiff in error, it was held that 'under an information of a single count, charging the defendant with the crime of rape, but not that it was committed on the person of a single woman, the defendant could not be convicted of fornication. In that case it was said: “ Rape cannot be charged in one count and incest in another.” And the case of State v. Thomas, 53 Iowa, 214, was cited in support of the remark. But in that case two of the five judges dissented. So, too, in the case of State v. Hooks, 69 Wis. 182, in which State v. Shear is referred to, there was but a single count for rape; but neither of these cases involved the question of what counts might properly be joined. We therefore hold that in the present case, founded on a single transaction, a count for incest may be joined with one for’ rape.

3. Whether the court should have required the district attorney to elect upon which count of the information he would proceed is a question which addressed itself largely to the discretion of the court; and it having appeared upon the trial of the plea in abatement that there was but one criminal transaction involved, and that the joinder of two counts was intended only to meet the different legal aspects which the evidence might give the case, we think the court rightly refused the request that the district attorney should make an election of counts. 1 Bish. Crim. Proc. (3d ed.), §§ 457, 462; State v. Leicham, 41 Wis. 566, 577. We are unable to see how the defendant can be said to have been prejudiced in making his defense by the course pursued in the present case, either as to the joinder of counts or in respect to the question of election. The questions already considered, as well as the point made as to the sufficiency of the first count, have ceased to have any practical signifi-canoe, as the defendant bas been acquitted of the charge of rape.

4. It is assigned for error that the court allowed leading questions to be put to the prosecutrix, as noticed in the statement, to the prejudice of the defendant. Whether leading questions should be permitted rests very much in the sound discretion of the court, and rulings in respect to them are not the subject of exception, unless there has been an improper exercise of discretion. Barton v. Kane, 17 Wis. 37; Proper v. State, 85 Wis. 626. The particular circumstances attending the examination of the witness lead us to think that the defendant was not prejudiced by the rulings in relation to these questions, and that their allowance was not error for which there should be a reversal; but it would have been quite as wTell, in view of the hostile feeling of the witness to the defendant subsequently disclosed, if the rule against leading questions had been applied more strictly.

5. It is contended that as to the crime of incest the prose-cutrix must be regarded as an accomplice of the defendant, in that the crime implies consent on the part of the female, and that there should not have been a conviction upon her uncorroborated testimony. If the prosecutrix in this case is regarded as the defendant’s accomplice in the commission of the crime of which he was convicted, it was discretionary with the trial court whether to direct an acquittal or not, and a judgment founded on such uncorroborated testimony alone will not be reversed. Black v. State, 59 Wis. 471. The court was not required to direct an acquittal on that ground, or to give any instructions to the jury as to the effect of the testimony of the prosecutrix. While it was proper that the court should have instructed the jury on the subject, error cannot be assigned in the present state of the record for the failure or omission, for want of any proper request or exception on the subject. Knoll v. State, 55 Wis. 249; Clifford v. State, 58 Wis. 477; Sullivan v. State, 75 Wis. 650; Winn v. State, 82 Wis. 571. We cannot say, upon the evidence as contained in the record, that it does not support the conviction, or that an acquittal should have been directed. The question of guilt of the defendant and the credibility of the witnesses was one peculiarly for the jury, and they evidently believed from the evidence that sexual intercourse had taken place between the defendant and the prosecutrix, but that, while she did not consent, her resistance was not as strenuous and effective as it might have been under the circumstances. The fact that the defendant used a certain amount of force to overcome the resistance actually made will not enable him to escape punishment for incest, the parties being within the prescribed degree of consanguinity, if the force and resistance used were not sufficient to constitute rape. It does not necessarily follow in such cases that the female is to be regarded as an accomplice, and particularly in a case like the present, in view of the relation between the parties and the coercive authority of her father -over her. Raiford v. State, 68 Ga. 672; Norton v. State, 106 Ind. 163. If, in the commission of the incestuous act, the female was the victim -of force, fraud, or undue influence, so that she did not act voluntarily and join in the commission of the act with the same intent that the accused did, then she ought not to be regarded as an accomplice. In all such cases, where it is to be proved inferentially, the question of accompliceship is one of fact for the jury. Whart. Crim. Ev. § 440; Mercer v. State, 17 Tex. App. 452.

6. The instruction to the jury upon the effect to be given to the evidence tending to show that the defendant may have had improper relations with the witness Bertha Baker is, we think, misleading and erroneous. The evidence on that subject was very unfavorable to the defendant, and consisted of matters that appeared to have occurred after the commission of the alleged offense for which he was on trial. The court instructed the jury that they would remember that the defendant was not being tried for having improper relations with Bertha Baker; that that testimony was admitted to show the relations of Bertha to the defendant, so as to throw light npon the credibility of her testimony; and that they “ should only consider it and the facts disclosed by it as it has a bearing upon the question you are trying here,— that is, whether the defendant is guilty of the offense with which he is charged.” This instruction is so clearly erroneous that we suppose that it was the result of inadvertence. A greater latitude of proof as to other like occurrences is allowed in cases of sexual crimes; and in a prosecution for adultery evidence of previous acts of improper familiarity, amounting to adultery, between the same parties, was held competent, either in corroboration of witnesses for the prosecution or to show the disposition of the parties to commit the crime. Proper v. State, 85 Wis. 630, and cases cited. It cannot, we think, be maintained that the subsequent improper relations of the defendant with Bertha Baker would be competent evidence to show that he had committed the offense of rape or incest for which he was on trial, or to show that the defendant had a tendency even to commit such crimes. Evidence of what occurred in these respects subsequently, at another time or place, with another party, would certainly not be competent evidence. The misleading and injurious tendency of the instruction is such that we feel hound to reverse the conviction and grant a new trial.

By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded to the circuit court for a new trial; and, to that end, it is ordered that the warden of the state prison, in whose custody the said defendant, Ernest Porath, now is, do deliver him into the custody of the sheriff of the county of Brown, who is required to keep him in his custody until discharged therefrom according to law.