Jackson v. State

• Decision Date: 12 January 1892
• Citation: 81 Wis. 127,51 N.W. 89
• Parties: JACKSON ET AL. v. STATE.
• Court: Wisconsin Supreme Court

81 Wis. 127

51 N.W. 89

JACKSON ET AL.

v.STATE.

Supreme Court of Wisconsin.

Jan. 12, 1892.

Error to circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Information against George Jackson for larceny.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that the plaintiff in error, George Jackson, was married March 11, 1889. That he was a farmer, and resided in the town of Eagle, on the road leading from the village of Eagle, near the center of section 22 of that town, and running directly north about three miles; then north-easterly about half a mile to McCabe's corner; and from thence easterly, on a very crooked road, for about a mile, to his residence in section 2. That his brother, Henry, also lived with him. That there was also a highway running from McCabe's corner directly north for nearly a mile; thence westerly for about a mile; and thence in a southwesterly direction for about three miles, where it passed the house and barn of William Summers. That upon the night of December 21, 1889, Summers' barn was broken open, and about 20 bushels of wheat stolen therefrom. That the next day Summers swore out a search-warrant, and the officer having the same seized about 20 bushels of wheat found in the granary of the said George and Henry Jackson, on their farm described, as and for the wheat which had been stolen. That December 23, 1889, Summers also swore out a warrant against the said George and one William Sones, and they were arrested thereon, and held to bail. That an information was thereupon filed, charging, in substance, that on December 21, 1889, at the town of Eagle, in Waukesha county, the said George Jackson and Sones did willfully, feloniously, and burglariously break and enter, in the night-time, the granary building of William Summers, with intent then and there to commit the crime of larceny, against the peace and dignity of the state of Wisconsin. That to that information both George Jackson and Sones pleaded not guilty. That the theory of the state was that George and Sones were at the village of Eagle late on the previous evening, with a span of horses and double wagon. That, instead of going to Jackson's farm by the direct road described, they went westerly from Eagle for about a mile, and then went in a north-westerly direction for about three miles further, till they struck the road mentioned, running past Summers' place, in section 5, and about half a mile north-east of Summers' place. That they then turned, and went west and south, around Summers' place, and came back on the road previously described, and stopped at Summers' barn, and there took the wheat mentioned, and then went by the road so running in a north-easterly direction until about a mile north of McCabe's corner, and thence south to McCabe's corner, and thence easterly to Jackson's place, where the wagon was standing in the barn-yard the next morning, with no wheat in it. That they could trace said wagon by reason of the fact that one of the wheels wobbled and made an irregular track for the whole or part of that distance. It also appears from the record that the accused gave evidence tending to show that Jackson's wagon had no such wheel, and made no such track. That soon after the arrest the said George and Henry Jackson brought an action of replevin against the officer who had seized said wheat on the search-warrant, and, after a trial was had therein, a verdict was found in favor of the Jacksons and against the officer. That judgment was thereupon entered in that replevin action accordingly, and the same was never appealed from, and remained in full force and effect. It further appears that at the term of the court at which this criminal action was last tried the said Sones made default by failing to appear, and his recognizance was thereupon forfeited; that the trial thereupon proceeded against the said George alone; that at the close of that trial, and after the jury had been out for 11 1/2 hours, they brought in a verdict of guilty, in the manner and form charged in said information; that the court thereupon sentenced the said George Jackson to be punished by confinement at hard labor in the state-prison of this state for the term of one year from noon of that day, and that the first day of his confinement be solitary, and that judgment was thereupon entered accordingly. To reverse that judgment the said George Jackson brings this writ of error. Reversed.E. Merton, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State, cited on the question of admitting the testimony of a deceased witness at a former trial: State v. Frederic, 69 Me. 400;U. S. v. Macomb, 5 McLean, 287;Com. v. Richards, 18 Pick. 434; 1 Greenl. Ev. § 163; Kendrick v. State, 10 Humph. 479; Brown v. Com., 73 Pa. St. 321; Cooley, Const. Lim. 388; State v. McO'Blenis, 24 Mo. 402; State v. Baker, Id. 437;State v. Fitzgerald, (Iowa,) 19 N. W. Rep. 202;Hair v. State, 16 Neb. 601, 21 N. W. Rep. 464;People v. Murphy, 45 Cal. 144;Johnson v. State, 1 Tex. App. 344.

CASSODAY, J., ( after stating the facts.)

It appears that there was a former trial of this case, and the jury disagreed. Upon that trial the complaining witness, William Summers, was examined as a witness on the part of the state, and cross-examined on the part of the accused. After that trial, and before the last trial, that witness had died; and his testimony, as taken by the stenographer on the former trial, was admitted in evidence upon this last trial against objection. It is claimed that such ruling was an infringement of a right secured to the accused by that clause of the constitution of this state which declares that “in all criminal prosecutions the accused shall enjoy the right * * * to meet the witnesses face to face.” Section 7, art. 1. This language is quite similar to that contained in article 6 of the amendments to the constitution of the United States. In State v. Cameron, 2 Pin. 499, STOW, C. J., said: The trial by jury, as it existed of old, is the trial by jury secured by our national and state constitutions. It is not granted by these instruments; it is more,--it is secured. It is no American invention. Our fathers brought it with them to this country more than two centuries ago, and by making it a part of the constitution they intended to perpetuate it for their posterity, and neither legislature nor courts have any power to infringe even the least of its privileges.” That language is quoted approvingly by RYAN, C. J., in Re Eldred, 46 Wis. 553, 1 N. W. Rep. 175. Thus it appears that the right of the accused to meet the witnesses face to face was not granted, but secured, by the constitutional clauses mentioned. It is the right, therefore, as it existed at common law that was thus secured. That right was subject to certain exceptions. One of these exceptions was that the declarations of a murdered person, made when he was at the point of death, and every hope of this world gone, as to the time, place, and manner in which, and the person by whom, the fatal wound was given, are...