125 Wis. 439 | Wis. | 1905
There was no claim that Miss Cutter was-in Milwaukee on the day the offense was committed, or that she had any personal knowledge as to the particular day or time when it occurred. Notwithstanding that, on cross-examination, she was pressed by counsel for the accused to state-how, in making the charge against him, she fixed upon the nighttime of August 24, 1904. After several questions in that regard had been answered, demonstrating that the witness had no personal knowledge on the subject, this one was-asked: “I would like to,know how you fix the date, the particular date or that particular night ?” Whereupon the court remarked: “What materiality is there in that question ? Supposing it happened any time in the month of August, he could be convicted under this same charge, then why is the question-material ? If it happened any time that week that is enough.” It is insisted that such remark tended to impress the jury that, whether the offense was committed in the nighttime or not was immaterial. We see no reasonable support in the record for that. It shows from beginning to end that the trial court and counsel for the prosecution fully recognized that it was-necessary to establish as a fact that the offense was committed in the nighttime. The .jury must have understood the remark as referring to the fact that the precise date, not time of day, was immaterial. The charge to the jury was very precise as
One of the officers, who discovered some of the stolen property in the trunk belonging to the accused, commingled with other property, said, speaking of the former which was exhibited in court, that he found all that, and “also a large amount of stolen property that was later identified as taken from a residence in St. Paul.” The answer, as regards the other property having been stolen -in St. Paul, was not responsive to the question. A motion was made to strike it out before the witness completed his answer. As* soon as he was through answering, the court promptly granted the motion. No error can be predicated on such proceedings in regard to whether the answer was competent or not. •
Purther complaint is-made that the evidence was insufficient to warrant the jury in deciding that the dwelling-house was broken and entered in the nighttime. Sufficient appears in the statement of facts to show that the evidentiary circumstances very strongly suggested utter improbability of the house having been broken into in the daytime. The place where the entry was effected, as regards opportunity for seeing the offender in the act, and the disturbance of things in the house were such as to render it highly unreasonable to suppose that the event could have occurred in the daytime without attracting the attention of some one while it was in progress; and highly unreasonable that any one would attempt such a thing, under the circumstances, except under cover of darkness, since opportunity for choosing such an occasion was ample. The verdict on this point is well supported by ° the evidence.
By the Court. — The judgment is affirmed.-
