State v. Brozyna

286 N.W. 541, 232 Wis. 163, 1939 Wisc. LEXIS 261

• Court: Wisconsin Supreme Court
• Decided: June 7, 1939
• Status: Published

Opinions

Fritz, J.

Some time before the middle of September, 1937, the Bertrand’s Sport Shop in Green Bay was broken into in the nighttime. A Harrington-Richardson revolver and other articles were stolen. Edmund Brozyna was charged with the crime. Payson Williams confessed to his guilt and implicated Brozyna, who denied any connection with the burglary, presented an alibi, and offered evidence of his g'ood reputation as an honest and law-abiding citizen.

The information alleged that the crime occurred on the 14th of September, 1937. Williams said it was about the middle of September, and that the defendant was there and participated in the burglary. In order to weaken the credibility of this testimony, the defense attempted to prove by cross-examination of Williams that in a previous trial he had testified that he never was with the defendant prior to September 22, 1937. The district attorney objected tO' any reference being made to other proceedings unless they were identified. The court then sent for a record and asked the defendant’s counsel if that was the record of the proceedings referred to. When counsel replied that it was, the court in the presence of the jury read aloud enough of that record to indicate that the defendant, together with Williams and Willis Jacobs, had been charged with an assault with deadly weapons and intent to rob. The defendant’s counsel then objecting, the court turned to the witness and said: “This is a question that was asked you with reference to your examination at that hearing. So now you know what he is asking you about.”

The defendant assigns this incident as error requiring a reversal of the judgment, emphasizing the court’s refusal to let it appear that the defendant was acquitted of the charges there made. However, it appears that in response to a request to have the record of acquittal introduced, the court said: “That is the record here, that he has never been convicted of any offense.” The variance in the testimony which Williams gave at the time referred to and on this trial was established and the defendant had the benefit of the impeachment. The defendant and a young lady to whom he was engaged testified that they were together during the hours in which Williams said that the burglary occurred.

The state called as a witness one Scanlan who' testified that he pawned a revolver of the same description as the one taken in the burglary, and that he received $4 for it and gave the money to- the defendant at the Arcade poolroom. Jacobs testified that he gave the pistol to Scanlan at defendant’s request, to be pawned. The evidence shows that this transaction occurred September 29th, about 1:30 p. m. In behalf of the defendant evidence was offered tending to show that on September 29th the defendant, who was a painting contractor, was at St. Joseph’s Orphanage, where he was engaged with a helper, and that he ate his noon meal. there that day. The helper testified, “I remember working for Ed Brozyna on September' 29th, on the outside of this building, on windows, painting sash. Ed Brozyna ate his meals there, too. . When he left the place he would return usually with merchandise. Sometimes I would only see him a few hours a day.”

There was a sharp dispute in the evidence. Although there are circumstances tending to weaken the effect of testimony given by important witnesses for the state, a jury issue was presented. And it must be said that the defendant evidently had more familiarity with Williams, Jacobs, and Scanlan than he was willing to admit upon the trial. He testified to lending his car to “these boys four times, sometime the last of September or October.”

In support of the defense, counsel for the defendant called and examined James Stathas and Mike Queoff in relation to the defendant’s reputation as a law-abiding citizen, and both witnesses testified that it was good. In rebuttal the state called Frank Heitzke, a police officer, and asked him whether he ever got a call during the last year from the Brozyna home. On defendant’s objection the court excluded all testimony in relation to such a call and limited the inquiry to testimony as to the defendant’s reputation as a law-abiding citizen. Heitzke testified that his reputation in that respect was bad; and when asked whether he had any facts as basis for his statement he answered, “As a police officer only.” The court denied a motion to strike that answer and instruct the jury to disregard it. No prejudicial error was committed in these respects. The defendant having introduced testimony that his reputation as a law-abiding citizen was good, it was certainly proper for the state to introduce testimony on rebuttal that the defendant’s reputation was bad in that respect; and as the officer had testified that he knew of that reputation, his testimony on that subject was clearly competent. Neither his knowledge nor his testimony in respect thereto was incompetent by reason of his having acquired knowledge thereof in his capacity of a police officer. All assignments of error relied upon for a reversal of the judgment have been considered and found insufficient. The criticism of the instruction to the jury and of the refusal of the court to include in the charge the specific request of the defendant with relation to conviction resting upon the unsupported testimony of an accomplice is not well founded. The request included matter suggesting promises of leniency made by the district attorney or by state authorities concerning which there was no evidence. In its general charge the court fully instructed the jury as to the caution to be used in weighing the testimony of an accomplice. We find no prejudicial error. . ■

By the Court. — Judgment affirmed.