Grabowski v. State

• Decision Date: 12 December 1905
• Parties: GRABOWSKI v. STATE.
• Court: Wisconsin Supreme Court

126 Wis. 447

105 N.W. 805

GRABOWSKI

v.STATE.

Supreme Court of Wisconsin.

Dec. 12, 1905.

Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.

Florian Grabowski was convicted of taking indecent liberties with a female child, and he brings error. Affirmed.W. B. Rubin, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for the State.

CASSODAY, C. J.

The plaintiff in error was convicted of having, on December 14, 1904, taken improper and indecent liberties with the person of one Franceska Heine, a female person of the age of about 10 years, of Polish parentage, contrary to the statute, and was sentenced to imprisonment in the House of Correction for the term of two years. Section 4588a Rev. St. 1898. It appears, and is undisputed, that the accused was at the time 24 years of age, conducting a saloon where he lived with his family, consisting of his wife and three children. His wife was the aunt of the little girl, who, after school hours, came to their house about 4 o'clock in the afternoon of the day named to take care of the little children, as she had done before. Soon after she came the accused had occasion to try on a new shirt which his wife had purchased for him, and which he found to be too small. Thereupon the accused directed his wife to take the shirt back to the store, and exchange it for a larger one. She did so, and while she was absent, according to the testimony of the little girl, the offense was committed. Soon after the wife returned the little girl told her what had happened, and then left for her home. Thereupon the wife called the plaintiff in error aside, and accused him of the offense, for which he was soon after arrested. The evidence in support of the conviction consists of the testimony of the little girl, the circumstances attending the alleged transaction, and the conduct and admissions of the accused at the time and subsequently.

1. Counsel for the accused insists that the evidence is insufficient to sustain the verdict, and he urges the improbability of the offense having been committed upon 12 different grounds. After careful consideration we are unable to find in any, or all of them together, any substantial reason for holding that the verdict is not sustained by the evidence. Nor do we feel called upon to discuss in detail any of them. It follows that the verdict must stand, unless the judgment is to be reversed for one or more of the numerous errors assigned.

2. Error is assigned for improper cross–examination of the accused. It appears that after five witnesses on the part of the defense had given testimony tending to prove that the accused was a man of good character, and after the accused had been examined by his counsel, he was cross–examined by the state at great length, and several of the questions put to him on such cross–examination were irrelevant, extraneous, and tended to degrade and excite prejudice against him in the minds of the jurymen. But the difficulty with this assignment of error is that no proper exception was taken to such irrelevant cross–examination, and hence the same is not here for review. Such cross–examination covered 10 typewritten pages. Only two objections or exceptions are mentioned therein. After the accused had testified that he had seen his lawyer, and that he had taken two men with him, as witnesses, to his father–in–law's house, where his wife was stopping, ostensibly to get her to come back and live with him, and that he had the two witnesses then in court to testify that he was kicked out of the house, he was asked this question: “You were building up your case rather than to get your wife back, were you not?” That was objected to, and the objection was overruled, and an exception taken. We perceive no error in such ruling under the circumstances mentioned. Besides, it does not appear from the record that the question was ever answered. The only other mention of any objection or exception to any portion of such cross–examination is the following statement in writing at the close thereof: “During this cross–examination there were objections made and exceptions taken to admission of testimony and rulings of the court.” This is altogether too general to be of service as an objection or an exception to any particular portion of such cross–examination, and certainly there were portions of it that were relevant and proper.

3. Error is assigned because the court refused to allow the accused to be in the presence and hearing of the little girl during the examination of her by the court, not under oath, as to her qualifications to testify. What actually occurred, as appears from the bill of exceptions, is to the effect that the little girl was called as a witness by the state, and stepped “up to the court's desk” with the accused “right near her,” whereupon the court ordered the accused away, to which his counsel excepted, because the court refused to have the accused in the hearing of the little girl at the time, to which the court said: “That is not true at all. The court has directed the defendant to sit down during the examination of this witness.” Counsel for the accused then said: “And I ask that the defendant be present. The Court: He is present. (The defendant sitting at table, the girl speaking low, the defendant's attorney not understanding the Polish language.)” Thus it appears from the statement of the municipal judge, in settling the bill of exceptions, that the accused was in the presence and hearing of the little girl during such examination; and there was no error in the refusal of the court to allow him to be “right near her” during such examination. Such examination of the little girl by the court was through an interpreter from English into Polish, and from Polish into English. The trial court reached the conclusion that she understood the nature of the oath, and that it required her to tell the truth; that she would tell the truth; that she always told the priest the truth; that she thought she might be sent to jail if she told a lie in court. Exception was taken because she was then told by the court: “When you are sworn as a witness, you must not be afraid. There ain't nobody here going to hurt you at all, and, when you are asked any question you don't understand, don't answer it until you understand it.” She then said she was “afraid of him.” Then the court said: “You need not be afraid of him or anybody else. There ain't anybody going to hurt you.” We find no error in such preliminary examination, nor in such instructions.

4. Error is assigned for remarks made by the court during the trial. Counsel submits 13 excerpts from the record of such remarks, but fails to give the circumstances under which they were respectively made. Some of such remarks were by way of inquiry of the counsel or the witness; some as to the relevancy or irrelevancy of testimony. Some of such remarks were favorable to the accused. Only 2 of the 13 excerpts were objected or excepted to. In referring to the portion of the record cited to each of such excerpts, we fail to find any error prejudicial to the accused. It was the plain duty of the presiding judge to keep the examination and cross–examination of witnesses within the rules of evidence, to keep counsel on both sides within proper bounds. The performance of such duty necessarily required him to speak in the presence of the jury.

5. Error is assigned because the court excluded testimony of the accused as to what his wife told him, or as to what he heard her say. She was not a witness in the case. With certain exceptions not here involved, she was not competent to be a witness in the case, either for or against her husband. Carney v. Gleissner, 58 Wis. 674, 17 N. W. 398;Smith v Merrill, 75 Wis. 462, 44 N. W. 759;Crawford v. State, 98 Wis. 623, 74 N. W. 537, 67 Am. St. Rep. 829;Miller v. State, 106 Wis. 162, 81 N. W. 1020;Kraimer v. State, 117 Wis. 352, 358, 93 N. W. 1097. Much less were her statements or declarations competent evidence. So the court properly excluded receipts of the wife to the accused for the same reason. So the court properly excluded testimony offered on the part of the defense as to what the witness heard any of the parties say, or what he heard the accused say, or what was said either by the accused or anybody else in the presence of the little girl. So there was no error in striking out the testimony of the accused to the effect that Dr. Sure told him that he had no right to go into the house where the little girl was without being called there. The evidence so excluded was mere hearsay. Near the close of the testimony the defense again attempted to prove what the wife said to the witness about the accused, and it was excluded. Thereupon the district attorney and the accused offered to waive the question of the wife's incompetency to testify, but the court very properly refused to accept such waiver, especially at that stage of the trial.

6. Error is assigned because the court admitted testimony of the little girl as to the accused taking indecent liberties with her person a short time prior to the time in question. Such evidence was clearly admissible, as tending to prove the motive and intent of the accused in doing the acts complained of. Benedict v. State, 14 Wis. 459;Proper v. State, 85 Wis. 628–631, 51 N. W. 1035;Lanphere v. State, 114 Wis. 193, 200, 201, 89 N. W. 128;Bannen v. State, 115 Wis. 330, 331, 91 N. W. 107, 965; 4 Elliott on Evidence, § 2720, and cases there cited. So there was no error in allowing the little girl, on redirect examination, to testify to the effect that the reason why she told the accused that what she had said about his committing the offense was all a lie was because she was afraid he would kill her. On rebuttal a witnessfor the...