85 Wis. 615 | Wis. | 1893
1. During the trial many questions put to witnesses, particularly the prosecutrix, were objected to by the defendant’s counsel on the ground that they were leading, and several assignments of error rest on this ground only. Prominent among these were the questions mentioned in the statement to the effect: “ Did he do anything with you that you thought he ought not to? Did it hurt any? Was there anything left when he got away from .you? Was it wet between your legs’? What about that, if you remember? What else did he do — about taking it in your hand,— anything about that? ” Leading questions are those which suggest to the witness the answer expected or desired, and it is said that questions are objectionable on that ground which embody a material fact and admit of an answer by a simple negative or affirmative (1 Green!. Ev. § 434); but not unless they suggest which answer is the desired one, or are more suggestive of one answer than another (Spear v. Richardson, 37 N. H. 26). Whether leading questions shall 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 that discretion (Barton v. Kane, 17 Wis. 37), or where the question was allowed plainly to the injury of the complaining party (McPherson v. Rockwell, 37 Wis. 159, 162). Upon this point the case of Hardtke v. State, 67 Wis. 552, was relied on, especially in respect to the third and fourth questions above, which it was contended were like the question held by a majority of the court to be leading, namely, “Was there any blood on your underclothes after this?” The court, in respect to one of these questions, said, “ It is a little leading,” when counsel added, before answer, “ What about that, if you remember? ” and the objection was renewed. The question was answered, and no exception was noted, but the answer was objected to as incompetent, and the same objection was
2. We do not perceive any valid objection to any of the questions put to Dr. Philler. They were addressed to him as a medical expert, calling properly for matters of opinion, based on the examination he made of the girl, and were to some extent based, as they might properly be, upon hypothetical questions. After stating a variety of causes which might have produced the redness of the genitals, there was no objection to his stating that, if a male had done with her what she stated, he would be very apt to lay it to that, in the absence of other causes; that he did not find any other cause, she being neatly dressed and clean in her person otherwise.
3. The evidence of undersheriif Dwinnell in respect to what the girl told him as to the treatment she had received, and what she told others, Mrs. Meininger, the girl Emma, and Miss Coates, was clearly competent for the purpose for which it was admitted, as explained by the circuit judge at the trial and in his charge to the jury, not to prove the substantive charge, but to show that she complained or reported what she claimed had occurred, and as in some degree a corroboration of her evidence at the trial. Whart. Grim. Law, §§ 565, 566. It is generally considered that there can be no conviction in cases such as this simply upon the unsupported and uncorroborated evidence of the prosecu-trix, and such testimony is held admissible in corroboration, and in many cases it is all such evidence that the nature of
4. Whether the court erred in not excluding from the consideration of the jury the evidence of the girl Emma, to the effect that the defendant came to the room in which she and the prosecutrix were sleeping, and got in bed with them and there had sexual intercourse with her, is a question not free from difficulty. It is á general rule of law, recognized by numerous cases, that upon the trial of the accused for one offense it is improper to prove that he has been guilty of other offenses, and that upon a trial for rape it would be incompetent to prove that the accused had committed or attempted to commit a rape upon another woman; but upon principle it seems that upon trial for rape, or for an assault with intent to commit it, it would be competent to show that the defendant had previously made an unsuccessful attempt to commit the same offense with which he was charged. The evidence tends to show that previous to his last assault upon the prosecutrix in March, he had made other like assaults during the winter months, and before Emma became his domestic servant, as well as after the occurrence in question; that he had behaved in a lewd and indecent manner to the girl Emma and the prosecutrix in the room where they slept, visiting it at late hours, evidently for improper purposes, and, it is claimed, with the intent which characterized his conduct towards the prosecu-trix on subsequent occasions. He got into bed with them
The reasonable and true rule seems to be laid down in Comm. v. Merriam, 14 Pick. 518, that “ evidence should be excluded which tends only to the proof of collateral^facts. It should be admitted if it has a natural tendency to establish the fact in controversy.” It was argued in that case that the defendant was not to be put upon his trial for every act of his life, but it was answered by the court: “ Be it so. If the evidence which was received has a natural tendency to corroborate other direct evidence in the case, it would seem to be clearly admissible.!’ And in that
We do not suppose that evidence that the defendant had committed adultery or been guilty of acts of improper familiarity with the girl Emma at another time or place, would be competent evidence on the trial of the present issue, but rest our ruling on the ground already stated, that the act of the defendant in going to the room where both Emma and the prosecutrix were sleeping, and getting in bed with them, was a grossly indecent assault on both; and the case in this respect is clearly distinguishable from the cases cited by counsel for the plaintiff in error. So far as proof is concerned that criminal intercourse had taken place between her and the defendant, that fact was fully established by the defense on the cross-examination of the prosecutrix. The defendant really made her his own witness on that point. Ro objection was made to the question to the girl Emma whether, on the particular occasion in question, the defendant had intercourse with her, nor to the answer she gave in the affirmative, until the close of all the evidence, and then only by the omnibus motion,
5. The objection that the court improperly admitted testimony of Ida Coates, to the effect that the defendant had come to her bed and kissed her, and attempted to have sexual intercourse with her, is not sustained by the record. 3STo such testimony appears in it. "We do not think, in view of the evidence, that there was any impropriety in the remark of counsel for the state in summing up, nor that the state should have been confined to proof of one act of attempted sexual intercourse with the prosecutrix, between the periods mentioned in the information. Proof of other attempts was competent in corroboration of the prosecutrix as to the substantive charge.
6. The prosecutrix was under the age of consent, and was conclusively incapable of consenting to the offense charged. It was neither necessary to allege nor prove a want of consent. Any attempt to have .carnal knowledge óf a female under ten years of. age is, by force of the stat
7. It was proper for Mr. Whitehead, the president of the Wisconsin Humane Society, to testify to the circumstances under which the prosecutrix came under his charge and was placed with the defendant with a view of being adopted. Whether Mr. Whitehead might sit by her when she gave her testimony was a matter resting in the discretion of the' court.
Upon the whole record, we cannot say that the verdict is contrary to law and evidence. We find no error in the record of which the defendant can complain.
By the Court.— The judgment of the circuit court is affirmed.