118 Wis. 473 | Wis. | 1903
The first subject debated is whether this court is authorized by the statutes to answer questions of law in criminal cases upon a report from the judge of the municipal court of Dane county, as it is upon the report of a circuit judge by express provision of sec. 4721, Stats. 1898. That section provides:
“If upon the trial of any person who shall be convicted in-said circuit court any question of law shall arise which, in the opinion of the judge, shall be so important or so doubtful*475 as to require tbe decision, of tbe supreme court, be shall, if tbe defendant desire it or consent thereto, report tbe ease so far as may be necessary to present tbe question of law arising therein.”
This statute, if applicable to the municipal court of Dane county, or to cases pending therein, is rendered so by sec. 2, cb. 49, Laws of 1901, which provides:
“The general provisions of law which may at any time be in force relative to circuit courts, and actions and proceedings therein, shall relate also to said municipal court, unless inapplicable.”
Under an entirely analogous statute relating to the municipal court of Milwaukee, it was decided in State v. Allison, 47 Wis. 548, 2 N. W. 1141, that the municipal judge was not authorized to report cases falling within the jurisdiction which he held concurrently with justices of the peace; and as late as Wendel v. State, 62 Wis. 302, 22 N. W. 435, it was again declared that the question whether such reports might be made and received, in cases within the jurisdiction held concurrently with circuit courts, was open and undecided. As early as State v. Witham, 70 Wis. 473, 35 N. W. 934, however, this court, without question or discussion, received and acted upon such a report from the municipal court of Rock county, and thence onward many cases are fo'und. of similar action upon reports from various inferior courts having no authority except statutes similar in character to that governing the municipal court of Dane county. Some of those cases are the following: State v. Witham, 70 Wis. 473, 35 N. W. 934; State v. Whitton, 72 Wis. 18, 38 N. W. 331; State v. Cornhauser, 74 Wis. 42, 41 N. W. 959; State v. Whitmore, 75 Wis. 332, 43 N. W. 1133; State v. S. A. L. 77 Wis. 467, 46 N. W. 498; State v. Goodrich, 84 Wis. 359, 54 N. W. 577; State v. Eaton, 85 Wis. 587, 55 N. W. 890; State v. Wendler, 94 Wis. 369, 68 N. W. 759; State v. Sawell, 107 Wis. 300, 83 N. W. 296. It was not until substan
We therefore proceed to consider the first question certified' — whether “the court erred in striking from the record the testimony of the witness from Stoughton,” which related to defendant’s reputation at that place for truth and veracity. Doubtless the decision of a trial court as to admissibility of tin's and many other classes of evidence, which depends on the prior establishment of other facts, may involve much of judicial discretion, to which all due regard should be given by a reviewing court when it appears to have been exercised. That consideration can have but little force in the present instance, however, for the rulings of the trial court make obvious that he deemed his discretion as to the remoteness or proximity of the proposed evidence controlled by a strict rule of law, and excluded the evidence, not because the defendant’s reputation existing at Stoughton two years before the trial was, in his opinion, too remote to have any bearing upon that defendant’s character for truth and veracity, but because a rule of law rendered it inadmissible if a later residence and reputation had been acquired elsewhere. Hence the trial court erred, if no such rule of law exists. To the question of its existence, we therefore address ourselves.
Of course, the real question of interest to the jury is whether a witness’ character with reference to truthfulness
The second question is not a proper one for certification or answer, under sec. 4721, Stats. 1898. It cannot be answered with certainty without examination of the entire record. State v. Jenkins, 60 Wis. 599, 19 N. W. 406; State v. Gross, 62 Wis. 41, 21 N. W. 802; State v. Cornhauser, 74 Wis. 42, 41 N. W. 959. True, the ruling of the court, being specific error, is presumptively prejudicial. Its certification emphasizes that presumption. Nevertheless there is possibility that it might have been cured in the course of the trial — as, for instance, by subsequent admission of the evidence first ruled out. Whether so cured can only be learned from a complete record, including a bill of exceptions. This we have not before us, and could not assume to examine if we had, under the authorities above cited.
By the Court-. — The first question reported is answered in the affirmative, and the second is left unanswered.