Hardtke v. State

• Citation: 30 N.W. 723,67 Wis. 552
• Parties: HARDTKE v. STATE.
• Decision Date: 14 December 1886
• Court: United States State Supreme Court of Wisconsin

67 Wis. 552

30 N.W. 723

HARDTKE

v.STATE.

Supreme Court of Wisconsin.

December 14, 1886.

Error to circuit court, Taylor county.

J. K. Parish, for plaintiff in error, Hardtke.

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

ORTON, J.

This was an information for rape upon the person of Theresa Seitz, of the age of about 12 years, by the defendant, a married man, 51 years of age. On reading the evidence, and carefully considering the proceedings on the trial, I cannot but think that the defendant was prosecuted with unusual severity, if not with malignity. It seemed to have been forgotten that the accused was presumed to be innocent until conviction, and that by the liberal, humane, and merciful policy of our criminal jurisprudence he should have every right and advantage which the law affords him. Nearly every objection to evidence made by the counsel for the defendant was overruled, and nearly every objection of the district attorney to evidence offered by the defendant's counsel was sustained, and most of the rulings of the court upon the evidence are erroneous.

1. There was not a particle of evidence in the case of penetration. The prosecutrix did not testify to any, but told one of the female witnesses, soon after the occurrence, that the defendant did not enter her body, and the physician called by the state, upon being asked if, from his examination of the prosecutrix, there had been penetration, replied, in effect, that there had not been, and that her hymen was normal; and another physician, called by the defendant as a witness, testified that he had never heard or read of a case where a young girl had been raped and the hymen remain. It is true that the court, after ruling that complete penetration was not necessary, asked this witness whether the least penetration might be made without destroying the hymen, and he replied, “I think so.” But it is sufficient that there is no evidence that there was the least penetration.

2. In connection with this subject, this medical witness was asked by the defendant's counsel whether the privates of a well–developed man could have penetrated hers, and the district attorney objected to the question, and the objection was sustained. This was clearly error.

3. The prosecutrix was allowed to testify, against the objection of the defendant's counsel, what one Muller told her to say about her injury when the defendant was not present, and was not shown to have known anything about it. Muller was thus assumed to have been acting for the defendant by his request, when there was no evidence of it.

4. The district attorney asked the prosecutrix this leading question: “Was there any blood on your underclothes after this?” It was objected to as being leading, and the objection was overruled, and the witness answered, “Yes.” There did not appear to have been any necessity or propriety in asking such a leading question, which so clearly suggested the answer to such a witness in such a case.

5. The counsel of the defendant asked the prosecuting witness, on cross–examination, “whether this was the only time the defendant was bad.” The meaning was obvious enough, which was whether he had ever done so before to her. It was pertinent to show, as bearing upon such a crime, whether there had been similar occurrences before. The objection of the district attorney to the question was sustained. This also was error.

6. The prosecutrix was asked if she did not tell a certain person that the wife of the defendant told her that if she would come into court and swear against the defendant she would give her a new dress. In this connection there was another question asked her,––whether the wife of the defendant had not advised and taught her to walk lame; and there was a question asked of another witness as to whether the wife of the defendant had not instructed the prosecutrix to feign lameness. Objection to all such questions was sustained. The prosecutrix had already testified that the wife of the defendant once told her to swear against him, and then again told her to go into court and say that the defendant promised her slippers and a cloak if she would not tell. It was apparent that the defendant and his wife were not on good terms, and that she was trying to getrid of him, and it was clearly pertinent to show that she was influencing the prosecuting witness to testify strongly against him, and if she was so influenced it affected her credibility. Therefore the above questions were proper and pertinent, and the court should have allowed them to be answered. The sustaining of the objection of the district attorney to them was clearly error.

7. After it appeared that the wife of the defendant had advised the prosecution, and told the prosecutrix to swear against the defendant, then the following question put to the witness Shanley was clearly proper, as showing the feeling of his wife against the defendant, as her motive for so advising the prosecutrix, viz.: “State whether or not Mrs. Hardtke ever told you anything about arresting Hardtke?” The court erred in sustaining objection to it, as also to the question, whether she told the witness that she was going to get rid of him.

8. After the court had again sustained an objection to the question whether the wife of the defendant had not advised and instructed the prosecutrix to walk lame, and how to do it, the witness was asked when he first saw her walking lame. An objection to this question was also sustained. This was also error. The prosecutrix had testified that one of the effects of the assault was that she was lame. It was certainly very pertinent to inquire whether this lameness was real or feigned, as bearing upon the nature and...