Lanphere v. State

89 N.W. 128, 114 Wis. 193, 1902 Wisc. LEXIS 100

• Court: Wisconsin Supreme Court
• Decided: April 22, 1902
• Status: Published

Opinion

The following opinion was filed February 18, 1902:

Maeshall, J.

The plea in bar did not tender any issue of fact as to which there could be, in the nature of things, any controversy to be established by evidence dehors the record. All matters of evidence of the facts alleged were a part of the recorded history of the trial. Therefore, the question of whether the special plliraiould be sustained or overruled was wholly one of law and was properly decided by the court. The jury had no duty to perform in respect thereto whatever. Jackson v. State, 91 Wis. 253, 64 N. W. 838; Campbell v. State, 111 Wis. 152, 86 N. W. 855. We do not understand that counsel for plaintiff in error make any contention but that the defense of former jeopardy was properly overruled. The only complaint made is in regard to the manner in which the court discovered the matters of fact upon which the plea turned, that is, that it was done by mere judicial notice of the record, instead of by the finding of a jhry. It is by no means certain but that the plea was bad upon its face. It merely alleged that the jury was discharged without the consent of the accused. Looking at the entire plea, the reasonable inference was that the jury were discharged in the exercise of the discretionary power of the court because they were unable to agree. In either event, the question raised by the plea was not only properly tried, but it was properly decided. It is too well understood to be open to reasonable controversy that in the trial of a criminal cause the court may, in the exercise of its sound discretion, discharge a jury and hold the accused for another trial when, after taking a reasonable time to consider the case, they are unable to agree upon a verdict.

The failure of the court to strike from the information the useless words, “and on divers other days and times between the said 4th day of August and the 1st day of September, A. D. 1898,” was not prejudicial to the rights of the accused. The words were mere surplusage. The naming of a day certain was essential, and that was satisfied. The prosecution was not limited to proof of an offense of the character charged upon the particular day named. The state was permitted' to prove that the offense was committed on any day within the period covered by the statute of limitations, but it was necessary for the prosecution to elect what day would be relied on, at some point in the trial, or for the court to so fence in the charge, since there was evidence of several offenses of the character of the one alleged, and the offense was of such a character that there might have been several. The prosecuting attorney, by the manner in which the trial was conducted, confined the inquiry, as to the offense for which the accused was on trial, to a day certain named in the information, and the jury were restricted to that particular day in considering the case, by the charge of the court. So there is no reasonable ground to claim that the failure of the court to strike the useless words from the information was prejudicial.

The conviction is challenged because, after the special plea was overruled, the accused was not required to plead anew to the information so as to raise an issue for trial on the merits. Such an issue is deemed essential. Davis v. State, 38 Wis. 487. But one was formed in this case, and all mere formalities in regard thereto, if there were any, were overlooked and waived by the accused by not objecting to the re-entry _as ordered by the court and by going to trial upon the issue thus formed without objection. Undoubtedly the rule is as contended for by counsel for plaintiff in error, that where a plea of not guilty is withdrawn by permission of the court for the purpose of letting in some other plea, it should be re-entered upon such other plea being overruled, before a trial upon the merits. Hatfield v. State, 9 Ind. App. 296, 36 N. E. 664; People v. Monaghan, 102 Cal. 229, 36 Pac. 511; Morton v. People, 47 Ill. 468; Hensche v. People, 16 Mich. 46. But it is not necessary, as counsel seem to think, that there should be a formal re-arraignment and plea by the accused, or that he should refuse to plead over in order that the former plea may properly be re-entered by the court. Where the plea is expressly withdrawn for the purpose of enabling the accused to enter a special plea, the reasonable inference is that the case will go to trial upon the merits in the event of such plea being overruled, and in such case the court may properly order the plea of not guilty to be re-entered. Morton v. People, supra. If such were not the case, the re-entry of the former plea by the court without objection, and going to trial upon the merits, as was done in this case, would constitute a complete waiver of any irregularity in the matter. A person can no more keep silent when he ought to speak in a criminal case than in any other, and then insist upon what he assented to by his silence as prejudicial error, where the right to do so is not given by some statutory or constitutional safeguard, plainly indicating that it is not a subject of waiver, or the denial of it plainly prejudicial. The doctrine on that subject is well established. It is stated in the books in this or similar language:

“If, except where some counter doctrine presses with a superior force forbidding, a party has requested or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he cannot afterward complain of it, however contrary it was to his constitutional, statutory, or common-law rights.” Bishop, New Cr. Proc. § 118.

The accused was not precluded from waiving any irregularity in the entry of his plea of not guilty, if there was any such irregularity, and we say there was none. He had the full benefit of such a plea secured to him by the order of the court. Therefore, all irregularities were waived not only by his own conduct, but by sec. 2829, Stats. 1898, which requires the court, at every stage of an action, to disregard any error or defect in the pleadings or proceedings which does not affect the rights of the adverse party, and not reverse any judgment or allow it to be affected by reason of such error or defect.

Complaint is made because the court admitted evidence of violations.of the girl by the accused other than the particular one for which he was on trial. Since, on account of the age of the girl, her attitude in the matter of the commission of the offense at the time thereof was not material, and it appeared that the circumstances were such that had she been over the age of consent the offense would have been fornication, it seems that it was proper to permit proof of other violations of her by the accused, than the one for which he was on trial, as corroborative evidence, under the rule discussed and approved in Proper v. State, 85 Wis. 615, 55 N.W. 1035. The doctrine on the subject laid down in Comm. v. Merriam, 14 Pick. 518, was there referred to and approved. “Evidence should be excluded which tends only to the proof of collateral facts. It should be' admitted if it has a natural tendency to establish the fact in controversy.” Under that rule, in prosecutions for adultery, other adulterous acts between the parties than the one for which the accused is on trial, may properly be given in evidence upon the ground that they tend to corroborate the evidence as to the particular act of adultery charged. In this case it cannot be doubted that the evidence, as regards -other acts of intercourse between the accused and the girl, tended to corroborate her evidence as to the particular act .-alleged, the same as in a case of adulterous intercourse. In that view the evidence was clearly proper under Proper v. State, supra, and McAllister v. State, 112 Wis. 496, 88 N. W. 212.

The point is made that the conviction is wrong because it rests upon the uncorroborated evidence of the girl. That cannot be sustained for two reasons: First, it is not the law that a jury cannot- rightfully find a Verdict of guilty of the -crime of rape, especially when committed upon a child, on 'the uncorroborated evidence of the injured party. Second, because counsel is very far from right in the contention that the evidence of the prosecutrix in this case is entirely without ¡corroboration. There was much corroborating evidence of the girl. It does not seem that there is any need to refer to It in detail. The undisputed and indisputable fact that the girl gave birth to a child at a time consistent with her accusation against the plaintiff in error should not be so far overlooked as to say that her evidence is entirely uncorroborated. True, there is much support for the proposition contended for by counsel, that evidence corroborating the prosecutrix is necessary to a conviction in a prosecution for rape, but there are many authorities the other way, and in our judgment they are much more reasonable and safe to be followed. Even if it were not for that, this court has heretofore decided the question. Any rule, it would seem, should be condemned, which will render conviction of the heinous crime of rape impossible merely because neither the person suffering- the direct injury nor the public is able to produce evidence corroborating that of the prosecutrix. Evidence given by the victim of such an alleged outrage, in a prosecution of the alleged guilty party, certainly should be scrutinized with the greatest care — all the care which a person would devote to* the most important affairs of life; but it should not be regarded as insufficient as a matter of law to sustain a conviction. As this court said in Osgood v. State, 64 Wis. 472, 25 N. W. 529, “The direct and positive testimony of the complaining witness, if believed by the jury, is amply sufficient to support the verdict.” The conviction there rested on the-uncorroborated evidence of the prosecuting witness, and was-sustained. If the rule were not as stated as regards a female over the age of consent, it should apply where the victim is a child under such age. One of the chief reasons for the contrary rule is the danger of a mere act of fornication or adultery being made the basis of a prosecution for the heinous, crime of rape. Courts have held, as it would seem, in reason,, they must hold, that corroborating evidence of the prosecu-trix, where she is under age of consent, is not essential to a conviction of such a violation of her person as is here charged. Female children are not so endangered as that by any mere weakness in the law. Jones v. State, 68 Ga. 760 ; State v. Lattin, 29 Conn. 389. In the last case cited there-was no confirmation of the child’s testimony by evidence of' the condition of her person after the commission of the offense, by medical examination or otherwise, nor was there-any corroborating evidence by medical testimony, and the-verdict of guilty was sustained.

Several criticisms are made of rulings on requests by counsel for the accused for special instructions, and of instructions given in the general charge. It is not necessary to review all of the criticisms in detail. We are unable to discover any prejudicial error in any of such rulings, or in the general instructions given by the court, except those to which particular reference will be made.

The court said this to the jury: “It is a rule of common sense and sound logic that a party who testifies falsely upon any material question shall not be believed upon any other question, unless his evidence is fully and strongly corroborated.” No time need be spent to demonstrate that to be erroneous to a very high degree. It is not the law that a person who testifies falsely as to one material matter in the trial of a cause cannot properly be believed as to any other such matter. A jury may properly believe a witness who has testified upon several matters, as to some of them, though they may believe the testimony false upon others. They have not a right to reject all of a witness’s testimony merely because they conclude that he testified falsely as to some material matter. Much less are they bound to do so. If a witness wilfully testifies falsely as to any material matter in the trial of a cause, the jury may properly reject all of his evidence which is not corroborated by some other credible evidence. Bratt v. Swift, 99 Wis. 519, 15 N. W. 411; Miller v. State, 106 Wis. 156, 81 N. W. 1020. They are not, under such circumstances even, bound to disregard all the witness’s testimony. They are merely permitted to do so if, in their judgment, such discredit is, by the wilfully false evidence, cast upon all of his testimony that no credence can, in their judgment, be safely given to any part of it. It is not necessary to prevent the rejection of all of a witness’s testimony where some part of it is wilfully false on that ground alone, that the other part be fully and strongly corroborated, as the court put it; it is sufficient if it is corroborated by some credible evidence.

In a case of such serious character as this, where there is plainly room for a jury to come to a conclusion either for or against tRe accused, and tRe case rests, in tRe main, on tRe evidence of tRe two parties wRo were concerned in tRe act wRicR is tRe subject of investigation, and tRe evidence of eacR refers to several matters upon wliicR tRe witness may Rave testified falsely, tRougR not wilfully so; or, if otRerwise, tRe witness’s evidence upon some matters was corroborated by evidence wliicR migRt reasonably be considered credible, tRougR not up to that RigR standard of full and strong corroboration given by tRe learned judge in Ris instructions, it is easy to be seen Row sucR an erroneous rule of law as tRat under consideration might of itself move a jury to find a verdict of guilty where otRerwise a verdict of not guilty would be found. It seems that the plaintiff in error is entitled to a reversal and to again be permitted to Rave Ris cause submitted to a jury..

TRe jury were further instructed as follows: “TRe prose-cutrix has been corroborated in many respects, as to almost every fact that she testified to.” That, as it seems, was a prejudicial invasion of the province of the jury. The most that the court could properly Rave said on the subject referred to was that there was evidence tending to' corroborate the prosecuting witness upon the matters testified to by her. Instructions should not even go that far unless the tendency to corroborate is clear beyond any reasonable controversy. To pass upon the evidence in that regard by saying, in effect, tli at it fully corroborates other material evidence, is entirely unjustifiable.

TRe jury were further told in respect to the evidence produced by the accused to sustain Ris defense of alibi, that it did not necessarily establish beyond question the impossibility of Ris Raving committed the crime as charged. We are unable to conclude with reasonable certainty what idea the jury may Rave got from that instruction. It was capable of being so understood as to be prejudicial. It was not necessary to an acquittal on the strength of the alibi that it should be more than sufficiently established to raise a reasonable doubt as to whether the plaintiff in error committed the offense charged. Again, whether the alibi was so firmly established as to preclude any reasonable belief that the plaintiff in error was with the prosecutrix at the time she claimed he assaulted her, was one of the disputed questions in the case upon the evidence;, and the court should not have said anything liable to be taken in a way to usurp the functions of the jury in regard thereto. We are not unmindful that the language of the court under consideration is capable of a construction which would make it harmonize with correct principles. It is sufficient that the jury may probably have understood it otherwise.

The judgment is questioned because it was pronounced by the coui’t, a different judge presiding than the one who presided on the trial. That point is ruled against plaintiff in error by Pegalow v. State, 20 Wis. 61.

There are some assignments of error to which we have not made particular reference, but all have been considered and are overruled except the errors in the charge which have been discussed at length. Eor such errors the judgment must be reversed and a new trial ordered.

By the Oourt. — The judgment is reversed and the cause remanded for a new trial, for which purpose the warden of the state prison is directed to deliver the plaintiff in error, Dell Lanphere, to the sheriff of Clark county, who is directed to safely keep the said Dell Lanphere in his said custody until he is duly discharged therefrom or it is otherwise ordered according to law.

A motion by the plaintiff in error for a rehearing was denied April 22, 1902.