Osgood v. State

• Decision Date: 01 December 1885
• Citation: 25 N.W. 529,64 Wis. 472
• Court: Wisconsin Supreme Court
• Parties: OSGOOD v. STATE.

64 Wis. 472

25 N.W. 529

OSGOOD

v.STATE.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Error to circuit court, Polk county.C. D. Smith and W. B. Ladd, for plaintiff in error.

A. W. Chynoweth, Asst. Atty. Gen., for the State.

COLE, C. J.

Though that ground is not assigned in the motion for a new trial, that the evidence is insufficient to sustain the conviction, yet this point is strongly relied on in the argument of counsel for the defendant below. But if the point had been formally made and considered by the trial court, it could not have prevailed, in view of the evidence set forth in the bill of exceptions. The direct and positive testimony of the complaining witness, if believed by the jury, is amply sufficient to support the verdict. The jury must have believed her testimony to have found as they did. And whatever may be said against the credibility of her statements as to the time and place the crime charged in the information was committed, we cannot say that these statements are so improbable as to be unworthy of credit. It is true, the crime is a very grave one, especially considering the relation of the parties and the age of the complaining witness. But the jury must have given credit to her statements, and considered them sufficient to establish the truth of the charge; so that the objection that the verdict is unsupported by evidence would fail, even if properly raised upon the record.

The first ground assigned for a new trial is that the jury was not regularly drawn and summoned. We are not clear as to what irregularity is relied on in support of this objection, but infer that counsel suppose the trial was at a special term ordered by the circuit judge pursuant to section 2426, Rev. St. But this was not the case. The defendant was tried at the regular term of the circuit court for Polk county, in December, 1882, (see chapter 90, Laws 1882,) and we must presume, in the absence of all showing to the contrary, that the jurors were regularly drawn and summoned for that term. Certainly, if any ground for a challenge to the panel existed, it should be made to appear affirmatively upon the record. We cannot presume that the jurors were iregularly summoned, or that they were not qualified jurors. The next ground relied on in the motion for a new trial is error in the instructions of the court. Here we are left in the dark as to what particular parts of the charge are deemed erroneous or prejudicial to the defendant. True, there are three portions of the charge included in brackets in red ink which may have been excepted to on the trial,...