McAllister v. State

• Decision Date: 17 December 1901
• Citation: 112 Wis. 496,88 N.W. 212
• Parties: MCALLISTER v. STATE.
• Court: Wisconsin Supreme Court

112 Wis. 496

88 N.W. 212

MCALLISTER

v.STATE.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Error to superior court, Douglas county; C. Smith, Judge.

H. W. McAllister was convicted of crime, and brings error. Reversed.

The plaintiff in error was convicted of assault with intent to commit rape upon Mrs. Catherine Montgomery, at the city of Superior, on the 23d day of February, 1901, and was sentenced to four years' imprisonment in the state prison, and brings his writ of error to reverse the judgment. The evidence of the prosecuting witness showed that the accused entered her house at about 2 o'clock p. m. on the day in question, and, after asking some questions about the people who lived upstairs in the house, and going upstairs to see them, came down again, and, after some inquiries, grabbed the witness by the throat, pushed her back in the chair, and held her over the table, and choked her, and then let go, when she grabbed a stove lifter, and struck him, and he staggered back, and she ran to the back door, and the accused went through the house out of the front door, and down the street. One Mrs. Casper, who lived three blocks distant from Mrs. Montgomery, was allowed to testify against objection that on the same day, just after 1 o'clock, the accused called at her house, and that she went to the door, and after some questions he put his arm around her, and grabbed hold of her throat, and said, “We will just have a little business here,” and she yelled for her husband, and the accused fled. The accused was arrested at about 3 o'clock p. m. on the same day while apparently trying to hide in a back stairway. No evidence was introduced on the part of the accused.George C. Cooper and George E. Dietrich, for plaintiff in error.

E. R. Hicks, Atty. Gen., for the State.

WINSLOW, J. (after stating the facts).

Three errors are alleged: First, that the intent to rape was not proven; second, that the evidence of the assault on Mrs. Casper was inadmissible; third, that the charge of the court was incorrect.

1. We cannot consider the first assignment of error, because the bill of exceptions is not certified to contain all of the evidence. It is true that a paper has been filed with the clerk a few days since, purporting to be an additional or amended certificate to the bill of exceptions bearing the signature of the trial judge, which states that the bill of exceptions contains all of the testimony in the case, and that the failure to so certify in the original certificate was an oversight; but we cannot consider it, because it is not attached to the bill of exceptions, and does not even come here with the certificate of the clerk of the trial court. The bill of exceptions is to be made and fully completed in the court below, and then becomes a part of the record of the court, and comes to this court (if at all) in response to an appeal under the certificate of the clerk of the trial court. It cannot be made or changed in this court, except, at least, by agreement of the parties.

2. Was the evidence of the separate assault committed on Mrs. Casper an hour before the assault upon Mrs. Montgomery competent evidence? It is freely admitted by the state as a general rule that upon a prosecution for one offense evidence of the commission of another and separate offense is not admissible, but the claim is made that the evidence was admissible in this case for the purpose of proving intent. The rule that, where intent must be proven, other crimes of like nature, which are so intimately related to the act in question as to show a common purpose or a continuity of purpose in all, may be shown upon the question of motive or intent,or to repel the inference of accident, is well recognized. State v. Miller, 47 Wis. 530, 3 N. W. 31; 1 Jones, Ev. §§ 143, 144; Zoldoske v. State, 82 Wis. 580, 52 N. W. 778. The rule is one which is not always easy to apply, and it is manifestly one which needs to be most carefully applied and guarded, or it is likely to result in many convictions based largely upon proof of the commission of crime not charged in the information,––a result which our criminal law does not contemplate. In the case of Proper v. State, 85 Wis. 615, 55 N. W. 1035, which was a prosecution for rape upon a girl, proof that the accused had previously got into bed with the prosecutrix and another girl named Emma, and had sexual intercourse with the other girl, was held proper on the sole ground that such an act was an indecent assault upon both girls; but it was said in the opinion by the late Mr. Justice Pinney: “We do not suppose that evidence that the defendant had committed adultery or been guilty of acts of improper familiarity with the girl Emma at another time and place would be competent evidence on the trial of the present issue.” While this remark was obiter in that case, it is believed that it expresses the rule which has been generally approved by the authorities, namely, that in prosecutions for crimes of this nature evidence of previous attempts by the accused to commit the crime upon the same person is admissible on the question of intent, but that evidence of attempts to commit the crime upon other persons is not admissible. Mr. Wharton says: “Evidence of prior sexual assaults on the prosecutrix is admissible on an indictment for rape, though not of rapes on other persons.” Whart. Cr. Ev. (9th Ed.) § 46. If this be the rule as to rape actually committed, it would seem to apply to mere unsuccessful assaults, where the purpose does not clearly appear with equal, if not greater, force. There may be a number of motives for the commission of an assault besides rape,––such as robbery, revenge, and the like,––and it can hardly be logically argued that because a man has assaulted two women, although the assaults were both on the same day, the same motive impelled both assaults. We are therefore of opinion that the evidence in question was erroneously received.

3. The trial judge charged the jury upon the subject of reasonable doubt as follows: “The court instructs the jury as a matter of law that in considering the case they are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical,––matters of conjecture. The doubt, to justify acquittal, must be reasonable, and must arise, either negatively or positively, from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.” The accused duly excepted to all of this instruction except the last sentence, and he now...