Carthaus v. State

• Decision Date: 13 January 1891
• Citation: 47 N.W. 629,78 Wis. 560
• Parties: CARTHAUS ET AL. v. STATE.
• Court: Wisconsin Supreme Court

78 Wis. 560

47 N.W. 629

CARTHAUS ET AL.

v.STATE.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Error to circuit court, Sheboygan county.M. D. L. Fuller and W. H. Seaman, for plaintiffs in error.

C. E. Estabrook, Atty. Gen., for defendant in error.

COLE, C. J.

So many exceptions are relied on for a reversal of the judgment in this case that each exception can only be noticed in the briefest manner, in order to avoid extending this opinion to an inordinate length. Besides, the questions raised by the exceptions are not of a character which would justify any elaborate discussion of them. The particular points are covered by the grounds assigned on the motion for a new trial, and they will be considered in the order they are stated in the motion. The plaintiffs in error, and defendants below, were charged with the offense of manslaughter in the first degree. The cause was tried three times, and, on the last trial, in November, 1889, they were convicted of manslaughter in the fourth degree. As intimated, a motion was made for a new trial, which was denied. The first specific ground relied on on the motion was the following language, which was used by the court, upon an objection by the defendants' counsel to a question put by the district attorney to the witness Orlopt: “We all know, if there was anything going on in the room, it is a very slight circumstance where a man sits. He may turn his chair or turn around. He is not fixed like a pillar of wood. The jury understand that perfectly well. It is a waste of time to try and enlighten them on that subject.” We are unable to see how this remark of the trial judge could have prejudiced the defendants. There seem to have been a great many immatetrial and irrelevant questions asked the witness on the part of the prosecution respecting the precise place he occupied at a table in the saloon, when the difficulty occurred in which it was claimed the deceased was struck a fatal blow by one of the defendants. The question was asked the witness if he was sitting at the north side of the table looking over to where the scuffle, which had been described, took place, and over which shoulder the witness looked; and the judge evidently thought there was no necessity for going into such minute details in the matter, and we fully agree with him in that view. We think the attorney general is right in saying that, if the remark of the judge produced any impression on the minds of the jury, it was quite as likely to be favorable as unfavorable to the defendants. But we do think the remark was quite harmless, and could not possibly have injured the defendants. And the same observation may be made in respect to the language which the judge used to the witness Otto Schneider, who did not know anything about what was said and done by the accused and the deceased in his very presence: “You must have seen a part of what was going on, didn't you?” How this remark could have prejudiced the defendants, we are unable to understand, and the objection to it seems frivolous. The record does not sustain the next objection, that the district attorney read the testimony purporting to have been taken at the coroner's inquest in the hearing and presence of the jury. He asked the witness Schneider if he had not testified at the inquest as follows: “That I didn't see what occurred there. I was reading a newspaper all the while.” The question was asked for the purpose of refreshing the mind of the witness, who said that he did not testify so at the coroner's inquest, nor to anything of that kind. The next objection is that the court erred in permitting the district attorney to ask the medical witness, Dr. Morehouse, this question: “In your opinion, could this injury have been caused by a blow struck by a club, for instance the small end of a base-ball club, about 18 inches long, in the hands of some person?” The witness Orlopt had testified that the defendant Carthaus, at the time of the affray, went back of the bar in the saloon, and picked up a small club, which he kept for breaking ice; that immediately thereafter a scuffle took place between the deceased and the defendants in the room in front of the bar, and witness heard a dull sound, and the deceased fell and sank onto the floor at once. Dr. Morehouse was one of the physicians who made a post mortem examination of the deceased, and testified as to finding the skull fractured, which he thought was the cause of death. The competency of the witness is not questioned, and it is clear that he could give his opinion, as a medical expert, as to the cause of death. Prof. Greenleaf says: “The opinions of medical men are constantly admitted as to the cause of disease, or of death, or the consequences of wounds, * * * and as to other subjects of professional skill.” 1 Greenl. Ev. § 440. This rule has been followed in this state, (Boyle v. State, 61 Wis. 448, 21 N. W. Rep. 289,) and it is amply sustained by authority. This disposes, likewise, of the objection to the question asked Dr. Beckel, who was one of the physicians that made an autopsy, and who described the fracture of the skull and wounds upon the head. His testimony was admissible upon the same ground as that of the other medical witness. There was no error in the ruling of the court on the cross-examination of the witness August Smith, who was produced to prove the good character and general reputation of the defendants in the neighborhood where they lived. The court confined the examination to the general reputation of the defendants, and would not permit the prosecution to inquire as to any specific act or thing about which they had been charged or accused. This, surely, was not prejudicial to the defendants, thus to restrict the examination.

Another error assigned is that the court did not allow the defendants a sufficient time to inspect and examine the list of jurors summoned on the special venire. A special venire was issued, after the regular panel of jurymen had been exhausted, and the defendant's counsel asked time to examine the list of names, before proceeding with the trial. It was claimed that there were names on the special venire which had been stricken off, or of persons who had already tried the case, or attempted to do so. The court gave the defendants' attorneys 10 minutes to examine the list. It was said that this did not give a sufficient time to go through the list, and an exception was taken to the ruling of the court on that...