Hofer v. State

• Decision Date: 29 January 1907
• Citation: 110 N.W. 391,130 Wis. 576
• Parties: HOFER v. STATE.
• Court: Wisconsin Supreme Court

130 Wis. 576

110 N.W. 391

HOFER

v.STATE.

Supreme Court of Wisconsin.

Jan. 29, 1907.

Syllabus by the Court.

As a rule of law there is no legitimate basis for a conviction in a prosecution of a man for fornication, if he unequivocally denies the charge; there is nothing suggestive to the contrary in the mere meeting of the parties under the circumstances; there is neither any direct evidence of the main fact nor direct corroborating evidence of the female as to circumstances bearing thereon and her evidence as to such circumstances may be regarded as self-destructive by reason of willful false swearing at material points.

Error to Circuit Court, La Crosse County; J. J. Fruit, Judge.

James Hofer was convicted of crime, and brings error. Reversed and remanded.

Writ of error to the circuit court for La Crosse county, to review a conviction of the offense of fornification with a sane female of previous chaste character under the age of 18 years.

It was claimed by the prosecution that the alleged offense was in fact committed at the home of the plaintiff in error. The companion of the alleged guilty party was a girl 17 years of age. Such party was a Catholic priest in charge of the congregation to which the people belonged with whom the girl resided. At the request of the plaintiff in error, November 1, 1904, the girl visited him for the ostensible purpose of receiving religious instruction. She was received into his private study. There was a bedroom adjacent thereto. She testified that when she was so received, plaintiff in error locked the door; that he proceeded to ask her some questions, and soon thereafter gave her a powder, making some suggestions which induced her to take the same on her tongue; that she soon thereafter became unconscious; that after a time she regained consciousness, when she found herself sitting in the chair, as before, with the priest beside her; that she was somewhat dizzy; that he handed her the catechism, and soon opened the door for her to depart, admonishing her not to tell what had occurred, for if she did she would lose her religion; that she promised not to tell; and that while on her way home she was conscious of a new sensation, indicating that something wrong had occurred. She testified to having visited the house of plaintiff in error, and been received and treated as before, on five subsequent occasions, and thereafter received from time to time and not so treated, and that in March, 1905, she was baptized and received into the church. She further testified, that on each of the six visits she first made she experienced on her way home the sensation before referred to, and that on the last of such visits she discovered that her clothes were disarranged, and that there were other indications of her having been abused. About nine months after the first of such visits she gave birth to a child. Her condition was discovered about two months prior thereto, whereupon plaintiff in error was induced to visit the place where she resided, and was then by the man of the house accused of having been the means of her condition. He became, thereupon, greatly excited, vigorously denied the accusation, and demanded of the girl if she would face him and claim that any such thing had occurred as had been suggested. Whereupon she said that she knew what he had done. A few days thereafter he left the country. Later a warrant was sworn out for his arrest, and he was found at the home of a Catholic brotherhood in the vicinity of Dubuque, Iowa. At the time of his arrest he said to the officer that there was no need of reading the warrant to him, as he knew what it was about. He claimed to have been sent into retirement at the home of the brotherhood by his bishop. There was evidence on his part that the story of the girl as to his having given her powders which rendered her unconscious was untrue; that her visits to him were not characterized by the privacy indicated by her testimony; that he locked the outside door only to prevent its blowing open; that there was a door opening from his study to parts of the house frequented by the housekeeper, so that she had full opportunity, at any time, to observe occurrences in the study, and that several persons came into the study while the girl was there. There was further evidence that about the time of the girl's visits to plaintiff in error, young men were paying her attentions. That on one occasion, on a Sunday, she attended a dance, which occurred in a hall over a saloon, and late at night after the dance walked a long distance to her home with her young man attendant. Several exceptions were saved to instructions given by the court, and refusals to instruct.Doherty & Baldwin, for plaintiff in error.

Otto Boshard, Dist. Atty., F. L. Gilbert, Atty. Gen., and J. E. Messerschmidt, State Law Examiner, for the State.

MARSHALL, J. (after stating the facts).

Several exceptions of minor importance, as we view them, were saved to instructions given to the jury and now presented for consideration. They are not wholly without merit, therefore, it seems best to discuss them in detail so that the difficulties they present may not appear in case of another trial of the cause.

Though iterating and reiterating that the accused was entitled to the full benefit of a legal presumption of innocence and could not properly be convicted unless the evidence established his guilt beyond a reasonable doubt, the learned trial court said to the jury:

“All that the law requires is that the jury shall be satisfied, beyond a reasonable doubt, and it is for the jury to determine, under all the evidence what constitutes a reasonable doubt in their minds.” “The court submits the whole case to you upon all the evidence, and leaves it for you to say, whether you believe the truth to be established beyond a reasonable doubt.”

The expression is quite novel that “It is for the jury to determine what constitutes a reasonable doubt in their minds.” It is probably true in the abstract that it is for the jury in any instance to determine what constitutes the conclusion “in their minds” on any branch of the case. The conclusion “in their minds” is the one that must govern. No one can form their conclusions for them. It was for the jury here to determine, after such explanation as the court afforded them, what constituted a reasonable doubt “in their minds.” They, themselves, necessarily had to arrive at their own mental concepts. However the expression under consideration is not to be commended. Standing alone it might be fatally erroneous, though under the circumstances it does not seem reasonably probable that the fairly clear instruction on the subject of reasonable doubt and the frequent admonitions given that the accused was entitled to an acquittal unless his guilt was established to the satisfaction of the jury beyond a reasonable doubt, were thereby materially weakened. Yet the uncertainty of meaning which may possibly have been misleading cannot be entirely overlooked when viewed in connection with other matters bearing on the question of whether the accused was given a fair trial.

The other expression quoted is by no means entirely clear. “The court submits the whole case to you upon all the evidence, and leaves it for you to say, whether you believe the truth to be established beyond a reasonable doubt.” Was that suggestive, reasonably, that the real truth of the matter was clear enough, but it was for the jury to determine whether they believed it to be established by the evidence produced beyond a reasonable doubt. If so, it was highly prejudicial. We do not think the learned court intended any such thing. The jury were told, as before indicated, most distinctly:

“The law presumes the defendant innocent until the state has satisfied you, beyond a reasonable doubt of the guilt of the offense with which he is charged. That presumption of innocence attends or goes with the defendant throughout the trial up to the time that you have arrived upon your verdict.” The whole case, from first to last, proceeded upon the theory of a judicial search for the unknown, but perhaps not discoverable. That the jury may have thought, from what the court said at the conclusion of the cause, that they were to determine whether the truth was established beyond a reasonable doubt, instead of determine the truth of the charge beyond a reasonable doubt, or that the truth as to the innocence of the accused was required to be established beyond a reasonable doubt before he could be acquitted, instead of that he was entitled to his acquittal unless the charge was established as true beyond a reasonable doubt, is so contrary to the instruction as a whole as to be unworthy of adoption. The learned court, probably, inadvertently, left out after the word truth the words “of the charge,” or he used such words and the reporter failed to put them down. We pass the faulty instruction as, under the circumstances, not by itself prejudicial, though it were far better not to have given it.

A question is presented of whether the court erred in instructing the jury to the effect that they were not necessarily precluded from convicting the accused by rejecting the powder story, in other words, that, notwithstanding the false powder story, it was open to them to inquire on the whole case whether the criminal act charged occurred under ordinary conditions. That is involved in the...