Murphy v. State
| Decision Date | 30 October 1900 |
| Citation | 108 Wis. 111,83 N.W. 1112 |
| Parties | MURPHY v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Fond du Lac county; N. S. Gilson, Judge.
P. C. Murphy was convicted of rape upon a child of 10 years, and brings error. Affirmed.T. J. Hoey, for plaintiff in error.
E. R. Hicks, Atty. Gen., for the State.
No detailed statement of facts need be made in this case, or of the evidence relating thereto. It is deemed best to include in published records of such cases, only so much of their history as is indispensable to an understanding of the points presented for adjudication and decided.
The first point made is that the verdict is not sustained by the evidence. The age of the girl and the opportunity for the accused to commit the offense were established beyond reasonable controversy. All the circumstances of the offense itself were positively testified to by the girl, and there is no such improbability in her story as to preclude the jury from believing it. Her testimony was corroborated by the usual proof of early complaint to her mother and of examination by a physician, disclosing a condition consistent with the theory that she had been abused to a sufficient extent to constitute the offense charged so far as carnal knowledge was concerned. In view of such evidence it needs no argument to show that the jury might reasonably have come to the conclusion which they did. The principal contention on this branch of the case is that the condition of the girl, considering her age and development, precludes the idea that she was violated to a sufficient degree to constitute the offense of rape. True, the evidence does not warrant the belief that her person was entered to any great degree; but if an entrance was effected at all, and there is ample evidence on that point, the additional extent of the violation of her body, if any, was not a material subject for investigation. Res in res, the engagement of the sexual organs at all beyond surface contact, all the other essentials of the crime charged being present, fully consummate the offense of rape in all its revolting brutality and wickedness, and no punishment within the scope of the criminal statutes on the subject can properly be said to be excessive. The claim that the verdict is not warranted by the evidence is without merit.
Error is assigned because the district attorney was permitted, in opening the case to the jury, to speak of the accused as a tramp; also, because, on cross-examination, inquiry was made into his past life. In those respects the conduct of the prosecuting officer cannot be wholly approved. Not that it was error, by any means, to inquire into the past life of the accused. That was proper if pursued for a proper purpose and in a proper way. In the opening statement to the jury the district attorney should always confine his remarks with reasonable strictness to a history of the offense charged and the connection of the accused therewith as he expects to establish the same by evidence to be produced; and in the cross-examination of the accused as to his past life, the object aimed at should only be to fairly place before the jury the facts bearing on his credibility as a witness. Statements and questions merely tending to prejudice the jury and to induce a belief in their minds as to the guilt of the accused because of transactions in his life in no way connected with the offense charged, are beyond the scope of proper cross-examination and of a prosecuting officer's duty. It constitutes reversible error if it clearly appear that the accused may probably have been prejudiced thereby. It is to be regretted that those who stand at the bar of the court as representatives of the people in public prosecutions do not always comprehend and observe the plain limits of official duty. Lapses in that regard generally indicate inexperience, overzealousness, or want of those natural qualities which are essential to a proper discharge of official duty. No lawyer who loves his profession and aims to excel in its work will consciously offend in such matters for the purpose of momentary success. The trial judge should be on the alert at every stage of the trial to prevent and rebuke such transgressions and to see that the accused person is protected from prejudicial consequences by such misconduct.
Notwithstanding what has been said, we are unable to say that the plaintiff in error was prejudiced by the matters complained of. The case comes far short of falling within the condemnation of Buel v. State, 104 Wis. 132, 80 N. W. 78. Plaintiff in error was referred to as a tramp, but afterwards the evidence produced in legitimately proving the offense charged pretty clearly indicated that he was of the class commonly so called. The inquiry into the past life of the accused was pursued by questions that did not bear on his credibility, yet nothing was elicited that by any reasonable inference pointed to him as a person liable to commit the offense charged. Nothing was added to what legitimately crept out in the course of the trial regarding the general character of the accused and his mode of life.
It is suggested that the information was insufficient in that the charging clause did not conclude with the words “against the peace and dignity of the state of Wisconsin.” That proposition is ruled against the plaintiff in error by Nichols v. State, 35 Wis. 308.
It is further contended that the court erred in not instructing the jury that if they did not find with the degree of certainty requisite to a conviction of the accused of the full offense charged, but did conclude that he assaulted the girl with intent to commit the crime of rape or that he assaulted her without such felonious intent, they should find a verdict of guilty of the lesser offense established and of not guilty of any other charge included in the information. Certainly it is permissible to convict of assault with intent to commit the crime of rape, or of simple assault, when the full charge in the information is the crime of rape, if the evidence establish beyond a reasonable doubt the commission of the lesser offense by the accused, but not the greater; and when the evidence is such as to reasonably permit that course, the jury ought to be fully informed in regard thereto, and the situation in this case called for such information. But it does not follow that reversible error was committed. It is one thing to err and another to commit prejudicial error. The former is to be disregarded, because justice is not thereby turned aside. The latter calls for correction, not merely for the error, but because it may have resulted in a conviction where otherwise an acquittal would have occurred. The great and primary end sought in all judicial proceedings is justice. If that be not jeopardized, within the range of reasonable probabilities, errors of omission or commission, however numerous, will not incline the judicial scales towards a disturbance of the result. There comes in the statute of this state, so often referred to as a beneficent provision that covers a multitude of errors and promotes certainty and economy in the administration of remedies for wrongs cognizable by court...
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...and as wholly unnecessary in the absence of a constitutional or statutory mandate making it so. That was affirmed in Murphy v. State, 108 Wis. 111, 83 N. W. 1112. There is no such mandate in the way as to the matter under consideration. A suggestion is made by one of the learned counsel tha......
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