125 Wis. 452 | Wis. | 1905
1. Sufficiency of evidence to support conviction :
(a) There is the direct evidence of Andrae both to the making of the promise and of payment of the $300. This suffices to carry both questions to the jury, notwithstanding defendant’s direct denial and the testimony of several witnesses in refutation of the latter fact.
(b) The only act charged in the indictment or proved by
2. Admissibility of Patitz’s acts and statements: State
3. Error is 'assigned upon an instruction that “the office of evidence respecting good reputation is not to raise a doubt of guilt, but to aid in solving it.” The proposition has no support from any authority or text-writer, so far as we can discover, except for a dictum in Bernhardt v. State, 82 Wis. 23, 28, 51 N. W. 1009, 1010, where it is said:
“Such fact is not to raise doubts when the evidence is clear and positive and there is no doubt on the facts, but, as said in Hogan v. State, 36 Wis. 226, (to solve doubts of proof.’ ”
Even this would not warrant the giving -of such instruction in the instant case, where the proofs are by no means of the conclusive character described, as we shall point out later; but the statement is, we are convinced, incorrect. This ■court has already decided that, even in the presence of evi-
4. Error is assigned upon an instruction in following, words:
. “Is tbe evidence given by Mr. Andrae in tbis case true, or-is it untrue ? Did be make up or did be fabricate tbe story wbicb be bas told, for tbe' purpose of convicting an innocent man? These áre questions wbicb each of you should consider in weighing bis testimony. It is your plain duty, if you believe that Mr. Herman Andrae made up or fabricated the story wbicb be bas disclosed to you, to determine, if you can, tbe motive for such a course on bis part. It is quite improbable that such a thing could be done without any motive.. In tbis connection tbe court instructs you that if you should agree with tbe defendant, Jac.ob Schütz, that tbe testimony of Herman Andrae is a pure fabrication, you should at least be able to find some motive for such a wicked fabrication on bis part.”
Tbe first criticism of tbis charge is that it usurps tbe functions of tbe jury in substantially instructing them that An-drae’s story is either true or a fabrication. By tbe clearest implication it excludes tbe jury from that field wbicb especially belongs to them, iof considering whether a conflict of evidence may be accounted for on tbe ground of innocent mistake. Such an act by a trial court is always improper,, though not always prejudicially so, for there may be situations where no reasonable possibility of innocent mistake can-be conceived, as in tbe case of Douglass v. State, 43 Wis. 392, where tbe opposing parties respectively affirmed and denied an act of carnal intercourse. No such palliation exists in tbe present case, however. An important part of An-drae’s testimony was to alleged statements of one Patitz, as a-co-conspirator with defendant, from wbicb might result an inference that a corrupt agreement was made by Patitz upon the authority of tbe defendant. ' Upon no subject is it more
Another serious criticism of this charge arises from the rule that it is not proper for the court to select one witness from several and apply to him or his testimony exclusively rules of consideration equally applicable to others. Valley L. Co. v. Smith, 71 Wis. 304; McKeon v. C., M. & St. P. R. Co. 94 Wis. 477, 486, 69 N. W. 175; Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 343, 93 N. W. 6; Loose v. Stale, 120 Wis. 115, 133, 97 N. W. 526; Harriott v. Holmes, 77 Mann. 245, 79 N. W. 1003; Hughes, Instr. to Juries, § 223. Such discrimination is extremely likely to mislead the jury into a disregard of other testimony in the case, or undue respect or suspicion for the specified witness. In this case, besides the defendant, there were several other witnesses antagonizing, in one respect or another, the testimony of Andrae, as to whom this instruction might as well have been applied. There was Schunk, who testified that
Eurther than this, however, the -instruction could hardly have failed to convey to the jury the idea that they could not honestly, as jurymen, disbelieve Andrae’s _ story unless they could “find some motive for such a wicked fabrication on his-part.” The correctness of any such idea was seriously questioned by this court in Jackson v. State, 91 Wis. 253, 267, 64 N. W. 838, and it was there intimated that such an instruction would probably be misleading under circumstances other than such as excluded the possibility of mistake. It is not the law that the jury may not discredit a witness, or even conclude that he has wilfully sworn falsely, without being able to find a motive, any more than they are precluded from finding the guilt of a defendant although the motive-be not apparent. Doubtless, as -said in Jackson v. State, absence of any motive is a proper consideration for the jury in-deciding whether a witness has wilfully falsified; but this instruction is so framed as to go beyond that principle, and, in effect, to declare the necessity of discovering the motive as a sine qua non to the disbelief of witness, even though he be squarely contradicted by other credible evidence.
5. This assignment of error complains of the following instruction :
“Under the law of this state the defendant is a competent witness in his own behalf. In considering the weight of his-testimony you have the right to bear in mind his interest in the result of the trial and the temptation that exists under the circumstances to testify falsely, and everything bearing upon his credibility, and then give his evidence such weight as the-jury believes it is entitled to receive.”
6. Error is assigned upon the following instruction:
“A wise rule which jurors may adopt for their guidance when there is a conflict of testimony between the witnesses is to give credence to the testimony of that witness or those witnesses who have the least inducement, through interest or other motives, to' testify falsely.”
We can hardly conceive a statement more in contradiction of the true rule in philosophy or in law. It eliminates all but one of those considerations which men usually do, and juries always should, give weight in passing upon the credibility of conflicting witnesses. It subordinates accurate
Some assignments of error predicated upon refusals of certain requested instructions cannot be considered because of failure of tbe bill of exceptions to present any exceptions.
By the Court. — Judgment and sentence reversed, and cause remanded for a new trial. The inspector of tbe Milwaukee bouse of correction will deliver the plaintiff in error, Jacob Schutz, to tbe sheriff of Milwaukee county, who will keep said Schutz in bis custody until duly discharged therefrom by law-