Rounds v. State

OktoN, J.

The first exception in the record, although not noticed in the brief, is to the jury panel, on the ground that it was not kept full by special venire. The statute (sec. 2537, R. S.) leaves the matter of the number to be summoned to the discretion of the court.

The exceptions noticed in the brief of the learned counsel of the plaintiffs in error will be considered in their order.

First. Hon. L. P. Wetherby, an attorney at law, appeared to assist the district attorney in the prosecution. The counsel of the plaintiffs in error objected to such assistance, and the court overruled the objection. This action of the court was tantamount to its permission that Wetherby assist the district attorney, on the trial, and the district attorney being present and at least not objecting, tacitly assented thereto, which was practically equivalent to a request that he should do so. This practice is sanctioned in principle by the decision of a similar question by this court in Lawrence v. State, 50 Wis., 507. It did not appear, nor was it offered to be shown, that Wetherby had any pecuniary interest in the case, or had been employed for any fee or reward. This question has been so recently decided by this court that it is unnecessary to refer in this opinion to the many cases cited by the learned assistant attorney general.

Second. The court sustained the peremptory challenge of the two jurors, Beyer and Hill, by the state, against the objection of the plaintiffs in error. The objection is based upon the assumption that the peremptory challenges of the state had been already exhausted. By the rule admitted to be *51 correct by the learned counsel of the plaintiffs in error, and sanctioned by the case of Scfmmáker v. State, 5 Wis., 324, the state and the defendants have the right of alternate challenge, and if it is not exercised in full, it is not thereby waived or lost. In this case the two defendants had each twenty-four challenges, making in all forty-eight. According to this rule the state could challenge one juror and the two defendants four, and the state was not bound to challenge until after such four challenges by the defendants. This being so, the state had not lost their right to challenge these two jurors, as two of its twelve challenges allowed by law. Sec. 4701, R. S., has no application to this rule, being confined to challenges for cause.

The third, fourth, sixth, seventh, eighth, and ninth exceptions may be disposed of together. They all depend generally upon the question whether the statements or testimony of the defendant Shea, and of the witness Wilson, taken down in short-hand by a stenographer at the time of the examination before the magistrate, and the statement or testimony of the defendant Rounds, taken down in the same way by a stenographer at the time of the examination before the coroner’s jury, and afterwards written out at length by him, must be introduced as records to show what such statement or testimony was, as admissions or otherwise, instead of oral evidence by the stenographer or others as to what statements they made or what testimony they gave on such examination. The court ruled, against the objection of the defendants, that such testimony and statements so taken down by the stenographer could not be introduced or received in evidence as records, or as the testimony of these several persons reduced to writing by the magistrate on these examinations, but that such statements and testimony might be proved by oral evidence, and so they were proved as the admissions of the defendant Shea, and as the statements of the witness Wilson, to contradict her evidence on the trial, *52 and as the admissions of the defendant Rounds, as evidence against him, or in rebuttal or contradiction of his testimony on the trial.

Whatever the rule may be as to the right of proving by oral testimony what the party or witness stated on oath on such examination in case the magistrate had reduced to writing such statements and made them records under the statute, it is very clear that neither of these written out statements or minutes of the evidence found among the papers in the case come within such rule. These minutes of the testimony made by the stenographer were mere fugitive papers, and no part of the record. (1) They were not “ reduced to writing by the magistrate or under his direction,” or “signed by the witnesses,” as required by sec. 4790, B. S., on preliminary examinations, or “reduced to writing by the justice of the peace or some other person by his direction,” or “ subscribed by the witnesses,” as required by sec. 4872, on inquests. It does not appear that these minutes were made even in short-hand under or by the direction of the magistrate, or signed by the witnesses, or that they' were in any way adopted or authenticated by him. If sought to be introduced in evidence they would be mere hearsay testimony, and that given in an improper manner. They may be correct or incorrect, so far as any official or record sanction is concerned. If they had been allowed to be introduced against the objection of the defendants, it would have been clearly erroneous, and the judgment for that reason would have been reversed. They were proper as memoranda made at the time by the stenographer, and might have been referred to by him to refresh his memory, but could not be read as evidence. This disposes of all these exceptions, only it is claimed by the learned counsel for the plaintiffs in error that as to the ninth exception such oral evidence to prove the statements of the defendant Rounds before the jury of inquest was improper after the defendants had rested their *53 case, as going into an examination in chief to support the information; as'to the eighth exception, that the whole of the statements of the defendants should have been proved by the state, if any; and as to the seventh exception, that the counsel for the state were allowed to ask leading questions as to the statements of the defendants.

1 This evidence as to the defendant Rounds was given after he had testified in his own behalf that he discharged the gun by accident, and this statement showed that he had admitted on such examination that it was done by design. It' was therefore proper for three reasons: (1) that it was directly in rebuttal; (2) that it was contradictory by way of impeachment; and (3) as original evidence admitted in the discretion of the court. As to the last reason see Campbell v. Moore, 3 Wis., 161 ; Comm. v. Dam, 107 Mass., 210 ; Comm. v. Moulton, 4 Gray, 39 .

2. It was not error in refusing to require the state to prove all the statements of the defendants, if any. It was the right of the defendants to have introduced in evidence all of the statements, or to have called them out on cross examination, which they failed to do, and therefore cannot complain.

3. Allowing leading questions in this matter of the statements or admissions of the defendants was not error, (1) because it wras in the discretion of the court; and (2) it is required, for the purpose of impeachment by contradictión of witnesses on the trial, that leading and direct questions be asked. Ketchingman v. State, 6 Wis., 426 .

Fifth exception. The district attorney was allowed by the court, against the objection of the defendants, to hold a private interview with the witness Hodgins, while on the stand, in regard to what he had already testified in the case, in a tone not heard by the defendants’ counsel or by the court. This was certainly very bad practice, and ought never to be repeated, and must have been somewhat thoughtless in the learned judge, usually so considerate in the trial of causes. *54 But, however improper and unbecoming, we cannot say, upon this record, that anything was said by the district attorney to the witness that affected his testimony in any way, or that the defendants were in any respect prejudiced or injured by this private interview. The defendants had the right to have examined the witness, as well as the district attorney, as to the matter of the interview, and had the same disclosed to the court and jury, but failed to exercise it. We cannot assume that anything improper was said to the witness, or that would prejudice the defendants, and therefore cannot reverse the judgment on that ground, but we wish to emphatically condemn the practice when the interview relates to the evidence in the case.

The other exceptions relate to the instructions of the court to the jury and instructions asked. It seems that all of the twenty-one instructions asked by the learned counsel of the plaintiffs in error were given, except five. The first instruction asked was as follows: “ If the jury find that the witness Wilson has wilfully testified falsely upon any material point, and the questions on her relations to the deceased and her condition as to whether she was under the influence of intoxicating liquors at the time of the homicide are material questions as bearing upon the weight to be given to her testimony, they will be justified in entirely disregarding her testimony, and in any view her testimony, in the position in which the testimony places her, should be received and weighed with great caution.” The court did charge the jury, “if any witness is proved to have wilfully sworn falsely in regard to any material fact in the case, you are at liberty to disregard her testimony, except so far as it is corroborated by other credible testimony.” The last part of the instruction asked was improper, as deciding in place of the jury the position in which the testimony had placed the witness; but we think the court laid down the rule substantially as asked, and full as strongly as the authorities sane- *55 lion. The material fact in respect to which the witness has sworn wilfully false should be some fact on which the case depended, or, as said in Whart. Grim. Ev., § 380, “ that goes to the core of the witness’s testimony,” in order to warrant the jury in disbelieving all of his testimony. The clause in the instruction, “ except so far as corroborated by other credible testimony,” must mean, if it means anything, that the jury might disbelieve the witness’s evidence, as to all the facts she testified to, unless such facts are established by other credible testimony, and that they should not receive the facts as proved because she testified to them, but because they are established by other credible evidence. In this meaning the exception does not even qualify the rule, and might have been as well omitted, but giving it did no harm. The court instructed the jury that “ if there was conflict in the testimony of the several witnesses which they could not reconcile, it was their duty to disregard such as they deemed unworthy of credit.” We think this, with the other instruction, sufficiently cautioned the jury.

The other instructions asked relate to the degrees of criminal homicide as found in the statute. As a rule, the reading of the statute defining any degree which the jury would be justified by the evidence to find, is sufficient. Explanations of the statute in different language generally confuse both the subject and the jury. The court read to the jury the statutory definitions of murder in the first and second degree, and manslaughter in all the degrees to. which the testimony was possibly applicable, and gave a short, but we think, on the whole, a correct, exposition of the law. The instructions asked were at least questionable, and at most, if correct', added nothing to the statutory definitions, which were made purposely to be understood by the jury as well as the court. We find no error in refusing the instructions not given, or in the instructions given, by the court, and copying them into this opinion is needless.

*56 On the general merits of the case,, on the evidence, we think the verdict against both of the defendants was warranted by the testimony, even conceding that the testimony of the witness Lizzie Wilson, as to what the defendant Shea said at the time of the shooting, was untrue. We think there was other evidence sufficient to connect the defendants together, both in the intent and execution of the fatal act.

By the Court.— The judgment of the circuit court is affirmed.