88 Wis. 185 | Wis. | 1894
The defendants were informed against, tried, convicted, and sentenced to imprisonment in the state prison for the crime of robbery and stealing from the person of one Joseph Preedon the sum of $20. As we understand the record, there are but two assignments of error: (1) The court admitted in evidence the confession of the defendant Joseph Shephard to the police officers while he was in custody in the common jail, and the evidence had its effect on the jury, and then the court excluded it as being a confession made under duress and extorted by threats, promises, and by falsehood. The court should have determined whether the confession was admissible
1. We are of the opinion that said first error is well assigned. The testimony was before the court as to the manner in which the confession had been obtained, and the court should have decided it as a preliminary question before admitting the whole'’ confession in evidence. Every word of the confession was fastened on the minds of the jury, and had made its impression there against the accused. Its subsequent rejection by the court would not -erase or remove that impression. It had produced its lasting effect upon the jury, and must have affected their verdict. The remarks of the learned judge in ruling upon the objections to the evidence were well calculated to deepen the impression already made by the evidence upon the minds of the jury. We cannot but think that this was a material error and prejudicial to the accused.
2. The method here adopted to get the confession of Joseph Shephard in evidence, after it had been excluded by the court as being incompetent and inadmissible by reason of its having been extorted by promises of immunity and threats of injury and by falsehood, was certainly very ingenious and plausible. It would seem as if it was made to fit the case of Comm. v. Tolliver, 119 Mass. 313. It was this case that induced the court to admit the evidence. That was also a case of robbery, and by more than one defendant, and one of them made a confession to the officers in the jail. The testimony of the officer was first taken as to the manner in which the confession was obtained (and
For the above errors the judgment must be reversed and a new trial ordered.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial. The warden of the state prison at Waupun is hereby ordered to deliver the defendants into the custody of the sheriff of the county of Ashland, to be held by him until they are discharged from his custody according to law.