84 Wis. 361 | Wis. | 1893
The defendant, líale Roberts, was tried and found guilty on a complaint charging him with being the father of a child of which one Eva Maud Banbes was pregnant, and which, if born alive, would be a bastar’d. The complaining witness, the said Eva, testified that the child was the product of sexual intercourse between the said Ilaie Roberts and herself, which took place in September, 1890, about 12 o’clock at night, in a single square-boxed buggy in which they were riding on their way to her bóme from attending an opera in the city of Racine. The defendant, as a witness in his own behalf, testified substantially to the same facts as to the time, place, and circumstances, but most positively denied the sexual intercourse and anything improper between them at that time or at any other time. This testimony of the defendant as to the occasion and suitable opportunity was nearly, if not quite, all the corroboration there was of the testimony of the complainant. The jury found the defendant guilty, and the court rendered the usual judgment. The defendant, on proper exceptions, has brought the case to this court by a writ of error, and has assigned several errors. There is only one assignment of error which we deem clearly well founded, and it being alone sufficient to cause a reversal of the judgment and ordering a new trial of the action, and as the other errors assigned, if any, may not again occur, they will not be further considered.
In this case the following instructions were given by the court to the jury at the request of the district attorney, viz.: “ You are instructed that in actions like this the mother of the child and the defendant are not of equal credibility as witnesses. You are instructed that they are not witnesses of equal credibility, because the defendant,
These instructions are sought to be justified by McClellan v. State, 66 Wis. 335. The instructions of the court requested to be given to the jury in that case were as follows: “ In this case both the mother of the child and the defendant are competent witnesses. The mother swears that the defendant is the father of the child, and the defendant swears that he is not. Then, if they are of equal credibility, the one, so to speak, offsets the other; and, unless further evidence given by other witnesses for the prosecution, or circumstances proven, satisfy you beyond a reasonable doubt of the defendant’s guilt, your verdict must be in favor of
It would be a most remarkable coincidence where two witnesses testifying directly against each other to a single fact, and neither one corroborated by other testimony, should be of equal credibility before the jury in all respects. It would be nearly, if not quite, as remarkable as that the two witnesses themselves should be alike in all respects. Their interests, feelings, prejudices, manner of testifying, means of knowledge, strength of memory, clearness of recollection, the reasonableness of their story, and other tests of credibility, would make their testimony preponderate to one side or the other. There is always“something in the witnesses themselves, or in their testimony, by which the jury can determine which is the more credible. This was the reason why this court could hot reverse the judgment in Kenney v. State, 74 Wis. 260. “ There was a flat contradiction in their statements, and, as far as we can discover, there was no more corroborating testimony in favor of the one than the other. It was for the jury to determine the question in the first instance. The jury having found a verdict giving credibility to the statement of the prosecuting witness, and the trial judge having refused to set aside the verdict, this court will not interfere.” Why not? Most clearly because the parties did not stand
In Ely v. Tesch, 17 Wis. 202, Mr. JusticePaine said:“It was improper for the court to say to the jury that when one witness testified on one side and another on the opposite side, and the two are equally credible, the testimony of a third necessarily creates a preponderance on either side. The witness might show such incapacity or prejudice or want of memory that the jury might regard him as wholly unworthy of belief.” In Van Doran v. Armstrong, 28 Wis. 236, one ground of the motion for a new trial was that the jury believed the testimony of the plaintiff as a witness in his own behalf against the testimony of two witnesses on the other side. Mr. Justice Lyon said: “It was not the duty of the jury to count the witnesses and render a verdict in accordance with the testimony of a majority of them, but it was their duty, to weigh the testimony, and render a verdict in accordance with a preponderance of the evidence.”
B]j the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.