Schuster v. State

• Decision Date: 03 June 1891
• Citation: 80 Wis. 107,49 N.W. 30
• Parties: SCHUSTER v. STATE.
• Court: Wisconsin Supreme Court

80 Wis. 107

49 N.W. 30

SCHUSTER

v.STATE.

Supreme Court of Wisconsin.

June 3, 1891.

Error to circuit court, Sauk county; R. G. SIEBECKER, Judge.

The plaintiff in error, August Schuster, was tried at the September term, 1890, of the Sauk county circuit court on an information charging in due form that on February 7, 1890, at said county, he feloniously made an assault with a dangerous weapon, to-wit, a club, on one Rosa Sackman, and did therewith beat and bruise her, with intent to kill and murder her. The jury found him guilty of the offense charged. A motion for a new trial, based upon affidavits tending to show that one of the jurors was not a citizen of the United States, and that another juror had expressed opinions before the trial that the accused was guilty of the offense charged, and was thus disqualified for prejudice, was denied. A motion for a new trial, founded on the minutes of the judge, was also denied. The court sentenced the accused to imprisonment in the state-prison for not less than one nor more than fifteen years, in the form of sentence prescribed by section 4733, Rev. St., as amended by chapter 390, Laws 1890, (Sanb. & B. Ann. St. § 4733.) The alleged crime was committed at the residence of one Klump, an uncle of Rosa Sackman, with whom she resided, situated on the road between Baraboo and North Freedom, in Sauk county, and near the Baraboo river. Rosa was 22 years of age. She was alone in the house at the time, her uncle and aunt being absent at North Freedom. She testified that August Schuster came into the house on the afternoon of February 7, 1890, and asked for food. She prepared some food for him, and he sat down at the table and ate it. He then seized her, tied her hands behind her with her apron strings, tied her feet with a cord which he took from his pocket, and threw her upon the floor. That before doing so he attempted to compel her to take something from a bottle he took from his pocket, which she said smelled like carbolic acid, and she thought it was mixed with something else. She successfully resisted taking the contents of the bottle, but the liquid was poured over her face and neck, which were burned by it. She called him by name, but he denied that he was August Schuster. He then demanded the money her uncle had belonging to the school-district, of which the latter was treasurer, and had been for many years. She refused to tell him where the money was. He searched for it in different rooms, but unsuccessfully. He also struck her with a stick of stove-wood, and kicked her several times, violently, on different parts of her person, and threatened to kill her by inches, and to drown her in the river. He then dragged her out of the house towards the river, but before reaching it a wagon was heard approaching, and he dropped her, and fled. She had attended school nine or ten years before with August, who then lived with his father in the same school-district, and was then quite intimate with him and his brothers and sisters. She had seen him but once afterwards, and that was two years before the assault was committed upon her. She then spoke to him. She testified with much positiveness that August Schuster, the accused, was the person who committed the outrage upon her, and recognized him at once as such person when he came into her presence after his arrest. She also described the clothing worn by her assailant, which corresponded with that found in the possession of August when arrested. When Mr. and Mrs. Klump returned home later in the afternoon they missed Rosa. Search was immediately instituted for her, and she was found near the river, insensible, her hands and feet tied in the manner above stated, and her face and neck burned and blistered. They found the table prepared for one person, found a stick of stovewood on the floor, and bureau and stand drawers disordered, and partly emptied of their contents. Rosa remained insensible most of the time until the next morning. She testified before the examining magistrate in February, and again on the trial in September; in both cases, however, at her home, being unable to attend the court by reason of her injuries. We find no material discrepancies in her testimony or in any statements of the occurrence made by her in or out of court. She has always firmly maintained that August Schuster is the person who committed the outrage upon her. For several years Rosa has been subject to occasional fainting fits, which seem to be of an epileptic character; and in 1888 she had two attacks of paralysis. These attacks, after they passed off, do not seem to have affected her memory or mental faculties very perceptibly. Since she was assaulted, and during the same year, she has had other attacks of paralysis. Her testimony was taken at her home; the judge, jury, attorneys, and accused attending for that purpose. She fainted before it was completed, and could proceed no further. So much of her testimony as was then taken, and her testimony before the examining magistrate, was read on the trial, by stipulation, as her testimony in the case. One Barbara Meyer testified on the trial that she knew August, and that she saw him at the house of his father in North Freedom (which is two miles from Klump's house) on the morning of February 7, 1890. Other witnesses testified that on the afternoon of that day they saw a person, dressed as Rosa testified the man who assaulted her was dressed, walking on the railroad track in the same vicinity. Mrs. Collins, who taught the school attended by Rosa and August nine or ten years before, and who had seen him but once since, readily recognized August when she saw him in court. Soon after his arrest he denied to one of the witnesses that he knew the young lady who had been assaulted, and the witness, who was the sheriff of Sauk county, thought he denied ever having been at North Freedom. The testimony on the part of the defense was almost entirely directed to proving an alibi. It appears that August had left his home in Sauk county a year or two before the alleged offense was committed, and it was not definitely known where he was most of the intervening time. During such time he attempted to commit suicide in the city of Madison, by shooting himself. For several months thereafter no one in Sauk county seems to have known anything about him. However, he went to Watertown, in this state, and in October, 1889, was employed in a hotel in that city under the assumed name of Arthur Lewis, and continued in such employment until his arrest on this charge, about two weeks after Rosa was assaulted. His father, and his brother and sister, who were members of his father's family, testified that August was not at his father's house February 7th, as testified to by Barbara Meyer. Thirteen witnesses were examined for the defense concerning August's presence in Watertown on that February 7th, and each of them testified, more or less positively, to seeing him there on that day, engaged in the performance of the duties of his employment. It appears that, as the railroads ran at that time, it required from 7 o'clock P. M. until midnight to go from Watertown to North Freedom. The time required for returning to Watertown does not appear. The testimony is very voluminous. About 40 witnesses were examined on the trial, and the cross-examinations of many of them on both sides were searching and protracted. The above statement is but an outline of the testimony, but is believed to be sufficient to give a correct idea of the respective theories of the prosecution and defense, and the general features of the case. Some further statement of the case, including the errors assigned for a reversal of the judgment, will be found in the opinion.Grotophorst, Remington & Buckley and G. Stevens, for plaintiff in error.

J. L. O'Connor, Atty. Gen., for the State.

LYON, J., ( after stating the facts as above.)

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, 80 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 Rosa, 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 August 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...