Colbert v. State

104 N.W. 61, 125 Wis. 423, 1905 Wisc. LEXIS 164

• Court: Wisconsin Supreme Court
• Decided: June 23, 1905
• Status: Published

Opinion

WiNsnow, J.

The assignments of error are numerous. Those which seem necessary to be considered in order to .guide the trial court upon a new trial will be considered in their order.

1. At the opening of the .trial the late Lyman E. Barnes, of Appleton, appeared as an attorney assisting Mr. Wilcox, the district attorney, in the prosecution, and objection was made to his participation in the trial, based on affidavits tending to show on information and belief that he was the general attorney for the Chicago & Northwestern Railway Company at Appleton and was employed by that company 'to prosecute this action in order to defeat Mrs. Colbert’s claim against the company for the loss of her trunk. No order had at this time been entered on the minutes appointing Mr. Barnes to assist the district attorney. Mr. Barnes was then sworn, and stated that he was asked by Mr. Wilcox to assist in the prosecution of the case at the preceding April term of the court, and that he was then verbally appointed in open court; that he was local attorney of the Chicago & Northwestern Railway, but that no one connected with the company ever communicated with him about the case or employed him, and that he was getting no pay from ;that company; that he knew -nothing about the baggage suit and. never beard of it until that moment, and that be expected' bis pay from Outagamie county alone, and no one else. Upon this showing the trial court directed that an entry be made-upon the minutes of the court that Lyman E. Barnes “is appointed by the court, at the request of the district attorney, to assist him in prosecuting the case,” and that the minutes should further show that the appointment bad been made verbally by the court in the latter'part of April, 1903. Exception was taken to this order, and this is the first alleged error to be considered. This order was made under the power-granted by sec. 750, Stats. 1898, which provides that in certain specified cases, such as the absence or disqualification of' a district attorney and other cases, the trial court may, by order entered in the minutes, “stating the cause therefor,”' appoint a suitable person to act as district attorney for the-time being. The section then provides that the courts may “in the same manner and in their discretion appoint counsel to assist the district attorney in the prosecution of criminal cases.” The appointment here was made under the second, subdivision of the section, and the first claim is that the order is erroneous because it does not state the cause. Whether such’ an omission would be good cause for reversing a conviction in any case may be justly doubted, but, in any event,, we do not -consider that the words “in the same manner” require the statement of the cause, but simply require that the order be entered in the minutes as an order appointing a district attorney pro tern, is entered. Mr. Barnes’s testimony, which in its essential statements was undisputed, showed that he was unprejudiced, and not under any other retainer in. the case, and hence his appointment was within the discretion of the trial court. French v. State, 93 Wis. 325, 67 N. W. 706.

2. The information contained three counts. The first-count charged, in substance, with proper formal averments, that the defendant did in the daytime of July 11, 1902, wil-fully, maliciously, aud feloniously set fire to and burn one certain frame building, tbe property of one Mary M. Demp■sey, occupied by tbe defendant as tenant, by tbe firing and burning of wbicb tbe dwelling-bouse of one Tborn (tbe location of tbe bouse being fully set forth), tbe said Thorn being tbe owner and occupant of tbe bouse, and one Ballhorn being tbe owner of tbe lot on wbicb it stood, was wilfully, maliciously, and feloniously set on fire and burnt. Tbe second count charged tbe wilful, malicious, and felonious burning in the daytime of tbe frame building in wbicb tbe fire originated; and tbe third count charged tbe wilful, malicious, and felonious burning of tbe same building in tbe daytime, and that it was then occupied by tbe defendant as a dwelling-bouse. Before pleading to the information, motions were made by tbe defendant to compel tbe state to elect on which count it would proceed; also to quash each separate count of-tbe information,- — all of wbicb motions were overruled, leave ‘being given to tbe defendant to renew tbe motion to require an election at a subsequent stage of tbe trial. At tbe close of tbe state’s case tbe district attorney was allowed, against objection, to amend tbe first count of tbe information and then elect to proceed upon that count as amended. In these rulings we have found no error. Tbe matter of requiring an election was within tbe sound discretion of tbe trial court. Tbe various counts all plainly referred to tbe same act, and -there was nothing in them tending to mislead or embarrass tbe defense or distract tbe attention of the jury. Furthermore, all tbe evidence received was equally as applicable to the first count as to tbe second or third; hence there was no ■error in not requiring an election at tbe outset. The second and third counts having dropped out of tbe ease, there is no necessity to consider tbe question of their sufficiency. Tbe ■■amendments to tbe first count were not substantial, but simply added greater detail to tbe descriptions of tbe two buildings, wbicb we do not regard as essential for tbe reason that tbe count as originally framed sufficiently charged tbe crime ■of arson under tbe second clause of sec. 4400, Stats. 1898, which punishes the wilful and malicious setting fire to any building by the burning whereof the dwelling-house of another shall be burned in the daytime.

3. At the close of the state’s case the defendant moved that a verdict of “not guilty” be directed for failure of proof. This motion was overruled, and this ruling is assigned as •error. No argument is made by the defendant in this court upon the general proposition that the facts in evidence would not justify a finding that the defendant wilfully set the fire, but it is argued that the dwelling of Thorn was so far removed from the building where the fire originated that malice cannot be imputed to the defendant. It appears that the Thorn building was between seventy and eighty feet distant from the store building of the defendant, with two buildings and three narrow alleys intervening. The difficulty with the argument is plain upon examination of the statute. 'The statute only requires that the first building shall be maliciously and wilfully set on fire and that by the burning thereof the dwelling of another shall be burned. It is not required that the malicious intent to burn the dwelling-house ■shall exist.

4.’ It appeared by the evidence that on the 19th of January, 1903, Eev. Father Pellegren, the Eoman Catholic priest ■at Welcome, received an anonymous letter, written in pencil, and covering about five pages of note paper, which purported to be a confession by a man then in a hospital in Chicago, to the effect that he was a suitor of the defendant in his youth •and had been rejected by her, and that he was in Welcome at the time of the fire and deliberately set fire to the building after he saw her leave it, for the purpose of revenge. The letter was very badly spelled, and was apparently the ■production of an illiterate person. It closed with a request that it be published, so that people would cease to misjudge others. Pour days after receiving this letter Father Pelle-gren took it to New London and read it to the defendant. He-testified that she was excited, and that she wrote at his dictation and gave to him. a statement as follows:

“Pleas, I declare that no stranger spoke to "me on July 10,. 192, that I had now ideay how the fire started, I dellare that the lettler is unknown to me. Mes. L. Coolbebt.”

That she asked him to publish the first letter, and that he-read it in church on the following Sunday. These two letters were introduced in evidence, and marked respectively Exhibits “L” and “M,” and a number of questions are raised concerning them. Before they were admitted the priest had testified that he saw Mrs. Oolbert write Exhibit M, and that upon comparison of the handwriting in the two. papers he-believed that the same person wrote them both. Mr. John F. Tyrrell, an expert in comparison of handwritings, also testified, after examination of the two papers, as well as several other papers admitted to have been written by defendant, that in his judgment Exhibit L was written by defendant.. It is true that different conclusions as to the authorship of Exhibit L were reached by other witnesses, who were called as experts by the defendant, but this evidence simply made a question for the jury to determine. The evidence of identity was certainly sufficient to justify the reception of the-letter in evidence.

It is objected that the court erred in allowing Father Pel-legren to testify to his conversation with the defendant because under sec. 4074, Stats. 1898, a clergyman is not allowed to disclose a confession made to him in his professional character without the ‘ consent of the party confessing; but this objection is plainly untenable, because there-was no confession, and further because it is apparent that he was not acting in his professional character at the time.

Upon cross-examination of the witness Tyrrell defendant’s counsel presented to the witness a copy of the anonymous-letter (Exhibit L), which copy was claimed to have been written by ilírs. Colbert, and asked him to state whether, in his opinion, it was in the same handwriting as Exhibit L, to which the witness replied that-lie declined to give an opinion offhand, and wonld give no opinion without taking time to make a careful examination. Several other writings were presented to him, with the same result. Upon demand of counsel that the witness be compelled to reply at once, the state’s counsel stated that they would have the witness remain a week or a month, and have him make a careful examination of the writings presented if it was desired. The court ruled, in effect, that he would not compel an offhand answer. In the course of the colloquy on the subject the court said:

“I do not think the offer you make tends to do that. I do not think it is a fair offer. I don’t think it is a fair offer to the witness. The testimony of the witness, as I understand it, is not given of expert handwriting like the testimony often is by bank cashiers and others. The testimony of this, witness has been based upon an elaborate and somewhat-lengthy comparison of certain documents. If you want him barely to express an opinion as to those exhibits which you offer, let him do so. There is no objection to that. But there is an objection to undertaking to impeach deliberate and elaborate and thoroughly studied conclusions by an offhand expression of opinion.”

Exception was duly taken to these remarks, as well as to the ruling of the court, and these exceptions are vigorously urged upon us. The trial court has necessarily a large discretion in the matter of the examination of witnesses, and is charged with the duty of regulating the examination so that witnesses shall be fairly treated. The trial court is also in much better position to judge as to what constitutes fair or unfair treatment of a witness than this'court can be, and we see no abuse of discretion in the present case, but rather ai manifest attempt to insure for the witness that fairness of treatment to which every witness is entitled. It would have been, better if the court had not attempted to differentiate in his remarks between two supposed classes of expert evidence, because such remarks might possibly be understood to unduly dignify the character and credibility of the evidence given by the witness on the stand. It is to be wished that the ruling had been made without the accompanying remarks, but, were this the only matter to be criticised in the record, we certainly should not reverse the judgment.

There was testimony given by the defendant and one other witness to the effect that the priest guided the hand of the defendant while she was writing Exhibit M. This was denied by the priest, and upon rebuttal the expert Tyrrell was asked whether, assuming that certain papers in evidence were in the genuine handwriting of defendant (and they were admitted to be genuine), could Exhibit M have been written as it was, with the priest holding defendant’s hand. He replied that in, his opinion it was not a guided hand. Again, he was asked whether it would be possible for a person to write in a normal manner with another person having hold of the end <of the pencil and doing the guiding, and he replied that it would not. Also in answer to the question' whether this writing showed any evidence of a guiding hand he replied that it ■did not. It would not require expert evidence to establish the fact that where the hand or pencil of a person engaged in writing is guided by the hand of another person the result could not be the normal handwriting of either person. This must be common knowledge. We think also that when an expert has before him several papers admitted to be written by the same person, and all but one admitted to be in his or her normal handwriting, be may testify whether, in his opinion, the remaining one is in the normal handwriting. It may well be' considered doubtful whether the expert should' be allowed to state what the cause of the abnormality was, for the reason that any one of a number of different causes, such as ■excitement or intentional disguising of the writing, or the guiding of tbe band by another, might produce the abnormal effect; and it is not easy to see what satisfactory means an ■expert has of differentiating between these possible causes. We think upon a new trial the evidence of the expert should be limited to the question whether the writing is or is not normal.

Another question arising upon the expert testimony is argued. The expert Tyrrell, on behalf of the state, had testified that the letter Exhibit L was evidently the work of an illiterate person (the defendant herself was such a person), and had given his reasons therefor. Upon the defense Miss Corkhill, a college graduate and experienced teacher, was called, and testified that in her judgment, after careful examination, Exhibit L was written by one who had a good high school education. She gave reasons for her opinion, and was interrogated further as to the distinguishing features of the letter, when the court interposed and stopped the examination on the ground that too much time was being taken. It is not easy to see why this ruling should have been made, but, as no exception was preserved, we cannot consider the •question. •

5. After evidence tending to show that the defendant lived in Milwaukee in the year 1889, and was then known as Lucy or Lucille La Blanc or La Blanche, the state offered in evidence a certified copy of the record of the conviction of one Lucy La Blanche for violation of one of the city ordinances of Milwaukee on November 18, 1889, and the reception of this evidence is assigned as error. "While the defendant denied that she was in Milwaukee at that time and denied that she had ever been convicted, we think the evidence showing identity of name was sufficient to establish prima facie identity of the person and authorize the reception of the testimony as bearing on the question of her credibility under sec. 4073, Stats. 1898. The court properly charged that this testimony was only to be considered on the question of the defendant’s credibility as a witness, but in course of the charge said to tbe jury that there had been offered in evidence the record of the conviction of one Lucy GoTberl. This statement is relied upon as reversible error by the defendant, because-the record showed the conviction of Lucy La Blanche; but we are not inclined to regard it as serious, because it is so evidently a slip of the tongue that none could have been misled by it, and the jury were distinctly told that it was for them to determine whether the person so convicted was the defendant or not.

6. The defendant asked that the following instruction be given to the jury, and it was refused:

“All the evidence produced by the state is circumstantial. There is no direct or positive evidence that the defendant committed the crime charged. And to warrant a conviction on circumstantial evidence each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved, and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction. They must be such as to generate' and justify full belief according to the standard rule of certainty. It is not sufficient that they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, but the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt.”

The court- gave the following instruction on the subject:

“You will have observed, gentlemen, on the prosecution of' this case, that the evidence is largely, if not entirely, cireum-■stantial. Now, in respect to that I charge yon that circum■stantial evidence is legal and competent in criminal cases. If it is of such a character as to escinde every reasonable hypothesis other than that the defendant is guilty, it is entitled to the same weight as direct evidence. If yon believe from the evidence beyond a reasonable doubt that the defendant deliberately and intentionally set fire to the building, as -charged in the information, it matters not that such evidence is circumstantial, or made up of facts and circumstances, provided you believe such facts and circumstances pointing to her guilt to have been proven beyond a reasonable doubt by the evidence.”

The requested charge was substantially a correct statement -of the law and should have been given, and its refusal is prejudicial error because it was not covered by the general charge. Kollock v. State, 88 Wis. 663, 60 N. W. 817.

7. The court correctly charged the jury as follows:

“It is claimed in this case, gentlemen, that some of the witnesses have testified falsely. If you find that any witness has knowingly and wilfully testified falsely as to any material fact, you may reject all of the testimony of such witness ■except such parts of the testimony as you may find to be corroborated by other credible evidence, or by facts and circumstances that may fairly, be inferred therefrom.”

Later in the charge, after giving certain propositions relating to the alleged proof of conviction of the defendant in Milwaukee, the court said:

“The same rule applies in other evidence, contradictory ■statements made by the defendant or any other witness on the stand. If you find they have made statements contrary to the truth, the rule which I just read to you comes into play; that is, you may disregard the testimony of that .witness whom you find beyond a reasonable doubt to have sworn falsely. You may disregard that except as it may be corroborated by other credible evidence — to have knowingly sworn falsely.”

This last clause is plainly erroneous, and must be considered prejudicial, although a correct proposition on the same subject bad previously been given. The facts essential to the conclusion of guilt are the only facts necessary to be proven beyond a reasonable doubt. To say that, in order to wholly discredit a witness for the state, the jury must find beyond a reasonable doubt that he has wilfully sworn falsely, is to cast upon a defendant in a criminal case a heavier burden than he would have to bear in, a civil suit.

8. At the request of the defendant the court charged the jury that considerable of the state’s testimony consisted of alleged admissions made in casual conversations, and that such evidence was considered in the law very weak, owing to the liability of a misunderstanding or defective memory on the part of the witness, and that it should be considered with caution. The court then added to the instruction the following:

“This is- true, gentlemen. What I have just read to you is the rule. But bear in mind that admissions may be very important and very weighty testimony. It is for you to determine the weight and value that shall be given to these admissions, and to all the testimony in fact which has been produced in this case.”

Abstractly, this added clause is correct as far as it goes, but it gives no criterion to the jury from which they are to-judge when an admission is important or weighty. In fairness to the defendant the court should have told the jury that an admission, in order to be important and weighty, must be clearly proven, and' shown to have been made with some degree of deliberation, or words to that effect. "While we might not reverse on this ground if it stood alone, we have noticed the point in passing, in order to gu-ide the court upon a new trial.

9. The defendant asked for the submission to the jury of a long instruction on the subject of expert evidence and the weight thereof, taken bodily from one of the opinions of this court, and the request was refused. It is not deemed necessary to insert the requested instruction Rere. It was in the nature of a philosophical discussion, and was not fitted nor intended for the instruction of a jury, and we find no error in its rejection.

10. In one of the instructions-the court referred (by inadvertence evidently) to the fire “which was set in the Dempsey building,” and to the "setting of the fire in the Dempsey building.” Whether, under the circumstances and the language used just previously in the charge, this might he misleading and prejudicial, we find it unnecessary to decide. Such an implied assumption that some person set the fire should he avoided, and we assume that it will not occur again.

We have found no other points which require discussion. Eor the prejudicial errors hereinbefore considered there must he a new trial.

By the Gourt. — Judgment reversed, and action remanded for a new trial.