125 Wis. 414 | Wis. | 1905
1. Upon the trial the plaintiff in error-was found guilty, as charged, with having on July 1, 1904,. committed the crime of rape upon one Agnes Zielinski, a little girl only nine years of age. That such a crime was. committed -upon the little girl upon the day named, by someone, is undisputed. The defense is that the plaintiff in error was not the man who committed the crime. The testimony on the part of the state tends to prove that on the afternoon of the day named the accused was seen in the neighborhood’ of the little girl’s home at 1153 Second avenue, in the city of Milwaukee, by Agnes and three other little girls, whose ages ranged from twelve to fourteen years; that he talked to them and asked them the way to Eighth avenue; that they all noticed that he had two gold teeth; that soon after he took Agnes to Austin’s woods, so called, near the outskirts of the city, some half or three quarters of a mile distant from her father’s home, and there committed the offense charged; that in going there they passed the residence of one Gielow,’ and later the flagman’s shanty, and so on over the railroad track into the woods mentioned. Gielow was sworn as a witness on the trial and testified that he did not at the time know the name of the accused or of the little girl,, but that he saw them passing his house together on the afternoon of the day in question. The flagman was sworn and testified on the trial that he had known the little girl for about a year, by her first name only; had noticed her in and about the railway tracks picking up coal and wood; that on the afternoon of the day in question he saw her and the accused passing together over the railroad tracks where he was-stationed; that soon after the little girl’s mother came and inquired of him if he'had seen .her little girl. There are-other facts and circumstances, including certain admissions-' of the accused, tending to prove that he committed the offense. True, when the little girl next saw the accused, which was about five weeks afterwards, and at the police sta
“The identity of a third person always is a matter of inference and opinion, but it is an opinion which any one who remembers facts on which to base the inference may give. ... A material fact may be proved by legitimate inference as well as by direct testimony.” Comm. v. Kennedy, 170 Mass. 18, 24, 25, 48 N. E. 770. See, also, State v. Sey*418 mour, 94 Iowa, 699, 63 N. W. 661; Yarbrough v. State, 105 Ala. 43, 16 South. 758; Thornton v. State, 113 Ala. 43, 21 South. 356; People v. Rolfe, 61 Cal. 540; State v. Powers, 130 Mo. 475, 32 S. W. 984; State v. Lytle, 117 N. C. 799, 23 S. E. 476; State v. Harr, 38 W. Va. 58, 17 S. E. 794.
The evidence which was admissible and admitted, within the scope of these authorities, is amply sufficient to support the conviction.
2. Error is assigned because evidence was admitted of certain confessions made by the accused. It is conceded by the state that, in order to be admissible, the confessions must have been voluntarily made. In ruling upon the question the trial court held, in effect, that if the accused, while under arrest, was induced by hope or fear to make the confession, and made the same relying upon such statement, then the confession was inadmissible. Such is the established rule. 6 Am. & Eng. Ency. of Law (2d ed.) 531. But it is equally “well settled that the mere request, advice, or admonition to tell the truth will not vitiate a confession induced thereby.” Id.
“There is no fixed rule as to what will constitute a voluntary or involuntary confession. Each case must depend •upon its own facts and circumstances; the test in every case being whether it was or was not the free, uninfluenced statement of the party making it.” 3 Ency. Ev. 304, and numerous cases there cited.
For further discussion of the subject of such admission of evidence of such confessions, see Hintz v. State, ante, p. 405, 104 N. W. 110, and particularly Bram v. U. S. 168 U. S. 532, 18 Sup. Ct. 183. Of course the trial court, in ruling upon such admission, was required to determine, from all She facts and circumstances in the case, whether such admissions were made voluntarily or not. Connors v. State, 95 Wis. 77, 69 N. W. 981. Such determination is controlling unless it appears satisfactorily from the record that such determination was clearly against .the evidence. Id. In that
3. Error is assigned for admitting in evidence the shirt •and trousers claimed to have been worn by the accused at the 'time of committing the offense. The contention is that these ¡articles were not sufficiently identified to be admissible in
4. It is claimed that error was committed in the admission of evidence of two of the little girl witnesses — Mary and ITattie — mentioned, as to conversations had by them with the police officers. It appears that, after Mary and ITattie-Avere respectively sworn and examined on the part of the state, they were cross-examined by counsel for the accused as to conversations they had with the policeman and the detective to the effect that they talked with them about the clothes worn by the accused on the day the offense was committed ; that the first persons they- talked with about the-case were the policeman and the detective; that they asked them how the man looked; that they promised such officers that they would go and be witnesses in the case; that when.
5. Exceptions were taken to certain portions of the charge to the jury. Among other things the court charged the jury:
“The defense claimed in this case is that of an alibi; that is, that the defendant was elsewhere when the offense was committed. The testimony offered to prove this defense should be subjected, like all the evidence in the case, to rigid scrutiny, for the reason that witnesses, even when truthful, may be honestly mistaken in, or forgetful of, times and places.”
The contention is that, the defendant having testified that he did not commit the crime charged, the defense claimed was more than that of an alibi. But the story of the little .girl and the testimony of the medical witnesses in relation to her lacerated and bloody condition immediately after the alleged offense are undisputed, and hence there could be no question but that the crime was committed. The defense was that the accused was not the man who committed the offense, as stated by the trial court.
6. The court also charged the jury:
“Evidence of previous -convictions of one charged with •crime or of one called as a witness is received for the purpose of enabling the jury to determine the degree of credibility of the defendant or of such witnesses.”
7. The court also charged the jury at great length as to-reasonable doubt. The only exception is to a portion of the charge defining a reasonable doubt to be “a doubt which would cause a reasonable or prudent man to pause or hesitate after giving the testimony that degree of consideration to which it is entitled and in which you have been instructed.” This portion of the charge is claimed to be inaccurate and prejudicial to the accused, within the repeated-rulings of this court, in that it omitted the usual reference to the most important affairs of life. Emery v. State, 92 Wis. 146, 65 N. W. 848; Butler v. State, 102 Wis. 364, 78 N. W. 590; McAllister v. State, 112 Wis. 496, 500, 88 N. W. 212. It is conceded by the state that, if the portion of' the charge thus quoted stood alone, it would be subject to the criticism made; but it is claimed that such criticism is fully covered and obviated by a portion of the instruction upon the same subject, and given in the same connection, which the counsel for the accused has not printed or referred to, which is as follows:
“It is your duty to scrutinize the evidence with the utmost-caution and care; bring to that duty the reason and prudence which you would exercise in the most important affairs of life — in fact, all the judgment, caution, and discrimination that you possess,- — and then, unless you can say from that standpoint that you are satisfied of the defendant’s guilt beyond a reasonable doubt, you should acquit him, for while a juror has a reasonable doubt of the guilt of the defendant*423 in a criminal case be cannot, witbont great violence to bis conscience and sense of right, agree npon a verdict of conviction.”
Tbis seems to cover tbe criticism and answer tbe requirements of tbe cases cited. See, also, Ryan v. State, 115 Wis. 488, 498, 92 N. W. 271.
8. Tbe error assigned for refusing to instruct tbe jury that a probability of tbe accused’s innocence was a just foundation for a reasonable doubt is without force, since it is fully covered by tbe general charge.
9. So it was not error to refuse to instruct that tbe statement made by the accused to tbe mother of tbe little girl, namely: “Forgive me. Wait until my mother comes to make it up to you”- — did “not amount to a confession of tbe crime with which” tbe accused was charged. Tbe statement was properly admitted in evidence, and it was for tbe jury to determine tbe effect to be given to it.
We find no reversible error in tbe record.
By the Court. — Tbe judgment of tbe municipal court of Milwaukee county is affirmed.