Dickerson v. State

• Decision Date: 03 February 1880
• Citation: 4 N.W. 321,48 Wis. 288
• Parties: DICKERSON v. THE STATE
• Court: Wisconsin Supreme Court

4 N.W. 321

48 Wis. 288

DICKERSON v. THE STATE

Supreme Court of Wisconsin

February 3, 1880

Argued November 13, 1879

ERROR to the Circuit Court for Rock County.

Affirmed.

A Hyatt Smith, for the plaintiff in error.

The Attorney General, for the state.

ORSAMUS COLE, J.

OPINION

COLE, J.

At the April term of the circuit court for Rock county, 1879, the plaintiff in error was put upon trial on an information charging him, in apt words, in one count with the murder of one George Mack; and in another count with being an accessary before the fact to such murder, committed by Belinda Mack. On the trial, the prosecution, among other witnesses, called R D. Whitford, who, upon being sworn, among other things testified that he was present at the examination of Belinda Mack, at Beloit, in July, 1878, on the charge of the murder of her husband, George Mack, and took minutes of the testimony given on such examination, for the district attorney; and that the plaintiff in error was sworn and examined as a witness on behalf of the state. The witness Whitford was then asked to state the testimony which the plaintiff in error gave on that occasion in relation to his being sick at the house of Mack; and also to state the testimony which the plaintiff in error gave in regard to a conversation which he had with Mrs. Mack during the time he was sick. The counsel for the plaintiff in error objected to the admission in evidence, on the trial of this cause, of the testimony which was given by him on the examination of Belinda Mack on the charge of the murder of her husband, because or for the reason that the plaintiff in error was then under arrest and in charge of the officer at the time of his examination. The objection was overruled, and the testimony admitted. The first error assigned is this ruling of the circuit court.

The learned counsel for the plaintiff in error insists that the testimony of a party given on the examination while the person is under arrest, as in this case, charged with crime, is never admissible in evidence against him when he is upon trial for the same offense; and he relies upon the cases of Hendrickson v. The People, 10 N.Y. 13; The People v. McMahon, 15 N.Y. 384; Teachout v. The People, 41 N.Y. 7; and Schoeffler v. The State, 3 Wis. 823, in support of this position. The question as to whether or not the evidence was admissible is surely so thoroughly and exhaustively discussed, both upon principle and authority, in the above cases, that it seems a mere work of supererogation to attempt to add anything to what is there said. In the first case Hendrickson was called and sworn as a witness upon the coroner's inquest upon the body of his wife. The inquest was held upon the same day the deceased died, and before he was charged with her murder; indeed, before it was ascertained that a murder had been committed. His statements, made before the coroner, of the circumstances attending her death, were held admissible in evidence on the trial of an indictment charging him with her murder. Judge PARKER gave the prevailing opinion, which is marked by great learning and most vigorous reasoning. This case was decided in April, 1854.

The case of The People v. McMahon was decided in June, 1857. The head note states with sufficient accuracy the scope and effect of the decision. It is as follows: "The prisoner was arrested by a constable, without warrant, on suspicion of being the murderer of his wife. The constable took him before the coroner, who was holding an inquest on the body of the murdered woman, by whom he was sworn and examined as a witness. Held, that his evidence, as given before the coroner, was not admissible on the prisoner's trial for the murder." Judge SELDEN gave the opinion of the court, and reiterated the views stated by him in his dissenting opinion in the Hendrickson case. If his views were to be accepted as the opinion of the court, it is very manifest that the rule laid down in the previous case is greatly qualified, if not directly overthrown. So the decision stood when Teachout v. The People came before the court in 1869. In this case it was decided that the statements made by the prisoner under oath, at a coroner's inquest upon the body of his wife, are admissible against him upon his trial for the murder, although he knew at the time he was sworn that it was suspected the deceased was poisoned, and that he himself would probably be arrested for the crime, and was informed by the coroner that rumor implicated him, and that he had a right to refuse to testify. Judge WOODRUFF gives the opinion, in which, after reviewing and criticising the views of Judge SELDEN as expressed in the McMahon case, he finally reaches the conclusion that the decision in Hendrickson v. The People "should be regarded as settling the question raised in this case, and that no error in law was committed in permitting the declarations of the prisoner, made before the coroner, to go to the jury for their consideration."

The case of Schoeffler v. The State was decided at the June term, 1854. It is quite similar in its facts to the case of Hendrickson, except that the deposition was taken after suspicion had attached to the defendant in the neighborhood. The decision in the Hendrickson case is referred to by Mr. Justice SMITH with strong approval, and the doctrine of that case was adopted as establishing the correct rule on the subject.

In the light of these authorities we are inclined to the opinion that the ruling of the court below admitting the testimony was correct. It will be noticed that the plaintiff in error was examined as a witness in a prosecution against Belinda Mack. There is no pretense for saying that his testimony...