Schuster v. State

49 N.W. 30, 80 Wis. 107, 1891 Wisc. LEXIS 166

• Court: Wisconsin Supreme Court
• Decided: June 3, 1891
• Status: Published

Opinion

Lyon, J.

The plaintiff in error seeks a reversal of the judgment against him on two general grounds. He maintains (1) that the testimony is insufficient to support a conviction ; and, if held sufficient, then (2) that several erroneous rulings were made by the court during the progress of the trial, either of which is claimed’ to be fatal to the judgment. The errors thus assigned will be considered in their order. -

• I. Is the testimony sufficient to support the verdict of guilty? We think this question must be answered in the affirmative. That some person committed the offense' charged in the information is not controverted, and could not be successfully controverted under the testimony, for the proof thereof is overwhelming. The testimony of Rosa Sackman, if true, establishes the guilt of August Schuster. Her testimony -was not conclusively proved to be false. It was attempted to impeach its accuracy in but one way,, which was by showing that August was not at the place where the crime was committed when it was committed, but was then in the city of Watertown, eighty miles or more distant from such place. True, many witnesses testified that he was then in Watertown. This testimony is abundantly sufficient to support a finding to that effect,, had the jury so found; but it is not conclusive of the fact. We have here testimony of the existence of two alleged facts, only one of which can be true, and neither of which is conclusively proved. It is the function of the jury to determine which of these conflicting propositions of,fact is true. The jury believed the testimony of Eosa, and their verdict of guilty was the logical result. This did not necessarily impeach the integrity of the witnesses whose testimony tended to prove the alleged alibi, but only the accuracy of their recollection. These witnesses may have seen Aicgicst in Watertown under the .circumstances testified to by them, and at the same time be honestly mistaken as to the precise day they thus saw him there. There is no element in any of this testimony which stamps it as conclusive of the facts testified to. If the testimony impresses upon our minds the conviction that it preponderates against the verdict, that is not sufficient. The court must be able to say that there is no evidence to support the verdict, or that facts inconsistent therewith are conclusively proved, or it cannot disturb the verdict for defect in the testimony. To do so because we think the evidence preponderates against the verdict would be to usurp the functions of the jury. Yanke v. State, 51 Wis. 464. This court is sometimes compelled to affirm judgments which would be reversed without hesitation were the court competent to determine the relative weight of conflicting testimony. We refrain, however, from saying that this is such a case. Eor the reasons above suggested we cannot reverse the judgment for want of evidence to support the verdict.

II. We are now to consider the several rulings of the court made during the trial, including the denial of the motions for a new trial, which are assigned for error.

1. Adam Schuster, the father of Augxist, was called as a witness for the defense, and testified that August was not in the house of witness on February 1, 1890, as stated by Barbara Meyer. On cross-examination he was asked by the district attorney whether he had said to one Sweet that if Barbara Meyer testified August was there at that time he would take her up. The witness substantially admitted that he said so. He was then asked if he requested Sweet to conceal August, should he be found. The witness denied making any such request. Sweet was then called as a witness by the prosecution, and the corresponding questions were put to him. These questions were objected to on the ground that the testimony thus given by Adam Schuster related to collateral matters, irrelevant to the issue, hence not proper cross-examination, and that the state was bound by his answers, and could not be heard to contradict the witness.

It is legitimate cross-examination to interrogate an opposing witness as to his relations to the parties and the litigation, his motives, interests, inclinations, and prejudices, his means of obtaining correct and certain knowledge of the facts to which he testifies, and the manner in which he has used those means. 1 G-reenl. Ev. § 446. Such testimony is not collateral and irrelevant to the issue, and the party calling it out, if it be adverse to him, may contradict it by other testimony for the purpose of discrediting the witness. All this is quite rudimentary in the law of evidence.

The questions put to Adam Schuster by the district attorney went to his motives, inclinations, and prejudices in respect to the prosecution of his son, and were, therefore, proper cross-examination. When he denied that he solicited Sweet to conceal August, should he be found, it was competent for the prosecution to contradict him by other proof. Having admitted the threats against Barbara Meyer, perhaps it was irregular to permit Sweet to testify to the same thing. Certainty his testimony was unnecessary and unimportant, but the defense could not have been injured thereby. Hence it was not reversible error.

2. One Fred. Schulte was called as a witness by the prosecution, and testified that he knew August Schuster. The district attorney then asked him if he saw August on February 7, 1890, and be answered'in the negative. He was ■then asked by the district attorney, in a variety of forms, whether he had not stated to several persons at different times that he saw August on that day in the village of Ableman (which is in Sauk county), and relating to many circumstances connected with such statements. The testimony was received under objection. The district attorney was also allowed, under like objection, to put leading questions to the witness,— in fact to cross-examine him on those subjects. Schulte denied having made such statements. It is claimed that the foregoing rulings were erroneous.

If Schulte was an unwilling witness, the rule is that the court might, in its discretion, permit leading questions to be put to him by the party calling him. While we cannot say from a mere perusal of his testimony that Schulte was an unwilling witness, yet he may have shown himself to be such in a variet}'' of ways, plainly discernible by the trial judge, which are not disclosed in the written testimony, and which could not be delineated upon paper. In the nature of the case, no one can determine whether a witness is a willing or an unwilling one so accurately as the judge who sees him and hears him testify, and takes note of his bearing and deportment on the stand. In this case the judge evidently determined that Schulte was an unwilling witness. We cannot say he erred in so doing. Hence we cannot say that it was error to permit leading questions to be put to him by the party calling him. Balter v. State, 69 Wis. 321

There is some conflict of authority as to whether, if a witness unexpectedly gives testimony adverse to the party calling him, such party may ask him if he has not, on another particular occasion, made a contrary statement. Eut we think the cases which hold that the witness may be thus cross-examined by the party who called him are supported by the better reasons. There is force, no doubt, in the ob-jeetion that the jury are liable to infer front this course of examination that the fact suggested by it is true. In this case the fact thus suggested is that Schulte saw August in Ableman, on the day in question. But any danger of such inference being drawn by the jury may readily be removed by an instruction that no such inference is permissible. No such instruction was asked in this case. Had it been, doubtless the court would have given it. See, on this subject, 1 Greenl. Ev. § 414, and notes; Melhuish v. Collier, 15 Q. B. 878. We conclude, therefore, that it was within the legal discretion of the court to allow the prosecution to examine Schulte in the manner he was examined.

3. The court rejected testimony offered on the part of the accused to show that the people of Watertown asserted the alleged alibi from the time of the arrest of August, and that steps were at once taken to assert the fact that August Schuster was in Watertown on February 7, 1890, and to inform the authorities of Sauk county thereof. This, in substance, was an attempt to show that the people of Watertown did not believe August guilty of the crime .charged, and at once asserted his innocence when the charge was made. We are aware of no rule of evidence under which such testimony is admissible. The authority cited to sustain the rule (Wills, Ciro. Ev. p. 133) fails to sustain it. Of course it was proper to interrogate the witnesses whose testimony tended to prove the alleged alibi (and they were so interrogated) as to when their attention was first called to the charge against August, and the date of the commission of the alleged crime, for this circumstance might materially affect the weight of their testimony. But no such witness could properly be asked, on his direct examination, what steps he took to inform the Sauk county officials that August was in Watertown when the crime was committed.

4. The proceedings of the court on the motions for a new trial are sufficiently stated in tbe argument oí tbe learned counsel for tbe plaintiff in error as follows: “ After verdict, and before sentence, tbe attorneys for tbe accused made and filed a motion to set aside tbe verdict and grant a new trial upon tbe minutes of tbe court. Thereafter, and before sentence, upon affidavits duly filed, the court made an order to show cause why tbe verdict should not be set aside, for tbe reasons: • First, that one of tbe jurors who served upon tbe said trial, to wit, Edmund Briggs, was not a citizen of tbe United States; and, second, that one of tbe jurors who served upon tbe said trial, to wit, L. O. Holmes, bad formed and expressed an opinion, before tbe trial, in regard to tbe merits of tbe case, and was prejudiced against tbe accused. After tbe reading of affidavits and bearing argument thereon a new trial upon tbe grounds set forth in tbe said order was denied by the court. Thereafter, and before sentence, counsel for tbe accused asked to be beard upon tbe motion for a new trial upon tbe minutes of tbe court, previously duly made and filed, but tbe court refused to hear argument upon the said motion, and then and there overruled the same.” When tbe last ruling was made tbe judge stated that since tbe filing of said motion for a new trial on tbe minutes of tbe court be bad considered tbe questions raised by said motion, that tbe same were fresh in bis recollection, and therefore be did not care-to bear argument upon tbe same.

Before tbe jury were sworn tbe juror Briggs was examined under oath, concerning his qualifications to sit as a juror in tbe case. He testified, among other things, that be was a citizen of tbe United States, and was thereupon sworn and acted as a juror in tbe case. On tbe bearing of tbe motion for a new trial tbe only proof impeaching tbe truth of bis statement that be was a citizen, was tbe affidavit of Mr. Grotophorst, one of tbe attorneys for tbe defense, who deposed therein that after tbe trial Briggs stated to him that be came to this country in 1857, from England, where be was born; that he took no steps to become a citizen of the United States, except that, about 1868, he declared his intention to' become such; that he had voted a great many times, and always thought that was sufficient to make him a citizen.

If the foregoing affidavit is competent evidence to prove the.disqualification of Briggs, it fails to prove the fact. The act of Congress of April 14, 1802, sec. 4, on the subject of naturalization, provides that “ the children of persons who have been duly naturalized under the laws of the United States . . . being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States.” See abstract of the laws of the United States in relation to the naturalization of aliens. R. S. 1858, p. 1089. It may be true that Briggs is an alien and never perfected his naturalization in court, yet his parents may have become fully naturalized citizens during his minority and since he came to this country, or they may have been natives of the United States, and, of course, citizens thereof. In either case Briggs would have been a citizen of the United States without naturalization. In order to show that he was not a qualified juror because of alienage it was incumbent upon the plaintiff in error to negative the existence of the conditions above suggested.

Moreover, the testimony contained in the affidavit of Mr. G-rotophorst was mere hearsay, and should not have been received. If such testimony is received, any juror may, after trial and verdict, make statements out of court, not under oath, which, on proof that he made them, and without any evidence of their truth, might impeach the verdict lie joined in rendering. The solemn verdicts of jurors would be worth little could they be so easily overthrown.

As to the alleged incompetency of the juror Holmes because of prejudice, it is sufficient to say that the question of his prejudice was fully tried by the court on his statements when examined on oath as to his competency as a juror, and on conflicting affidavits upon the question. On the testimony before him the learned circuit judge held that Holmes was not prejudiced and was therefore a competent juror. There is testimony, although disputed, sufficient to support the finding, and this court cannot disturb it.

5. The only remaining question is, Was it error on the part of the court to refuse to listen to an argument on the motion for a new trial on the minutes of the court? There is no imperative rule of law which makes it obligatory upon the trial judge to listen to oral argument in support of every motion for a new trial which comes before him. Erequently, perhaps usually, the judge desires argument at the bar on such motions to refresh his recollection of the case and enlighten his judgment. But it may sometimes happen that he is so fully possessed of the case and the law of it that the argument of such motion would be a waste of time. ' What the law does require is .that the motion shall be heard by the judge who presided at the trial. This is the rule of Ohms v. State, 49 Wis. 415. This does not necessarily mean that counsel shall be allowed in every case to make a special oral argument to the court in support of the motion. It means that the judge should know the history of the case, and the facts thereof, and, in the light of such knowledge, should give to the question whether anew trial should be granted or denied calm, full deliberation and the exercise of his best judgment.

There is sufficient in the record of this case to show that the plaintiff in error was defended with great zeal and ability by his counsel, and that the case was fully argued by sueb counsel to the jury. The charge of the learned judge who presided at the trial (to which no exception was taken) shows the most accurate knowledge of the case on his part. After the motion for a new trial on the minutes was made, and before it was determined, another such motion, because of the alleged disqualification of jurors, was made and argued. This argument must have refreshed the memory of the judge upon the history and facts of the case. Under these circumstances, we cannot doubt that the judge was fully prepared to decide the motion when he decided it, and that further discussion of the case would not have aided him in reaching a correct conclusion.

These views dispose of all !the exceptions alleged for reversal adversely to the plaintiff, in error. Hence the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.