143 Wis. 205 | Wis. | 1910
We have concluded, after doubt on some, that none of the assignments of error necessitate reversal, for reasons to be stated:
1. The competency of the accusing witness was fairly within the trial court’s discretion, guided by his experience with her upon the preliminary examination, as also by her •appearance. There is not enough in the record to convince ns that such discretion was abused.
2. Her testimony being admissible, the verdict was not without support from evidence. That testimony is direct and positive to commission of the act charged, and apparently with understanding of that to which she testified. The question of her credibility, which doubtless is a serious one, was nevertheless for the jury, and she. was not wholly without ■corroboration.
3. The admission of unsworn testimony, even from very .young children, could hardly be justified but that defendant, albeit under considerable pressure from the court, yielded his express consent to omission of the oath, and has thereby waived all complaint thereof. Oborn v. State, post, p. 249, 126 N. W. 737.
5. The permission to convict for an offense at any time within the limitation period prior to June 30, 1909, given by an instruction, while technically correct in some cases,, might be prejudicially erroneous in others, unless very carefully guarded and qualified. In the instant case we can discover no prejudice. While prosecutrix was very contradictory as to the date, still she testified to only one offense at any time committed upon her by defendant, and his testimony evinces no uncertainty as to the occasion referred to. There was therefore no opportunity for part of the jury only to believe in the commission of one offense and part of them to rest their verdict upon another. If they agreed on the commission of one specific offense, it was immaterial whether it was committed in March or June. Defendant could not have been embarrassed in his defense by uncertainty as to the occasion involved.
6. The remaining and most serious question presented by several assignments of error arises upon allowing the state in rebuttal, over objection, to offer evidence of various specific immoral and libidinous acts by defendant 'in his store, addressed to girls and young women resorting thereto apparently in the course of business, such as the exhibition, from amongst his stock, of indecent pictures, the taking of personal liberties, and even solicitation to carnal intercourse. The evidence, if inadmissible, was beyond doubt highly preju
By the Court. — Judgment affirmed.