202 Wis. 31 | Wis. | 1930
The defendant groups his objections to receipt of the testimony under four heads: (1) It was taken under abuse of process and its receipt is contrary to public policy. (2) Receiving it would violate defendant’s constitu
(1) While the facts are stated on which the defendant claims the testimony of the witnesses was procured in the first instance through abuse of process, it seems sufficient to say upon this point that if it was illegally procured this affords no reason for its exclusion. 4 Wigmore, Evidence (2d ed.) § 2183. This point was recently discussed by Mr. Justice Stevens in Ware v. State, 201 Wis. 425, 230 N. W. 80, and we see no reason for further discussion of it. The only exception to the rule is where officers of the government violate the defendant’s constitutional rights by obtaining evidence by illegal search or seizure or by some sort of compulsion or duress, and the exception applies only in the federal courts and in this and a few other states. There was no violation of any constitutional rights of the witnesses here, and if there were it is not apparent why any one but the witnesses has right to raise the objection.
As to the public policy involved, there is no statute prohibiting its receipt. If objectionable on that ground it is for like reason that testimony given before a grand jury is not receivable, and in such case its exclusion is limited to situations in which such testimony is inadmissible. The John Doe proceeding is at most no more under the ban of secrecy than is a proceeding before a grand jury.
No cases or texts or other authorities are cited or found to the point that John Doe proceedings are secret, nor are any cited or found to'the point that they are on a parity with grand jury proceedings. But assuming without deciding that they are on such parity, we do not find that the testimony involved is inadmissible. In Murphy v. State, 124 Wis. 635, 102 N. W. 1087, the receipt of testimony taken
Of course, if a grand juror may testify to what a witness testified before the grand jury, the evidence of the reporter who transcribed the witness’s testimony may be received with at least equal reason. We conclude that the testimony objected to is not inadmissible on the ground that it was given in a John Doe proceeding.
(2) The ground of the second objection above stated is that right to office is a property right, and that property cannot be taken except by due process of law. Granted. But the point at issue is whether the testimony was competent, and admission of incompetent evidence is not denial of due process. State v. Owens, 124 S. C. 220, 117 S. E. 537. The defendant grounds this claim on the fact that he had no opportunity to cross-examine the voter. But however potent the want of cross-examination may be to exclude receipt of the voter’s testimony, it only affects its competency as evidence, and does not at all affect the process by which the court acquired jurisdiction herein.
(3) That the testimony was received on an erroneous theory is perhaps true. But it is a theory adopted by this court over sixty years ago and it has been consistently adhered to ever since. The leading case on the subject is State ex rel. Hopkins v. Olin, 23 Wis. 309, which involved an action to determine whether a county seat should be re
(4) The basis of this objection is that the testimony of the witnesses themselves given in court on the trial would be evidence of higher grade than their sworn testimony in
By the Court, — The judgment is affirmed.