Osgood v. State

Decision Date01 December 1885
Citation25 N.W. 529,64 Wis. 472
CourtWisconsin Supreme Court


Error to circuit court, Polk county.C. D. Smith and W. B. Ladd, for plaintiff in error.

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


Though that ground is not assigned in the motion for a new trial, that the evidence is insufficient to sustain the conviction, yet this point is strongly relied on in the argument of counsel for the defendant below. But if the point had been formally made and considered by the trial court, it could not have prevailed, in view of the evidence set forth in the bill of exceptions. The direct and positive testimony of the complaining witness, if believed by the jury, is amply sufficient to support the verdict. The jury must have believed her testimony to have found as they did. And whatever may be said against the credibility of her statements as to the time and place the crime charged in the information was committed, we cannot say that these statements are so improbable as to be unworthy of credit. It is true, the crime is a very grave one, especially considering the relation of the parties and the age of the complaining witness. But the jury must have given credit to her statements, and considered them sufficient to establish the truth of the charge; so that the objection that the verdict is unsupported by evidence would fail, even if properly raised upon the record.

The first ground assigned for a new trial is that the jury was not regularly drawn and summoned. We are not clear as to what irregularity is relied on in support of this objection, but infer that counsel suppose the trial was at a special term ordered by the circuit judge pursuant to section 2426, Rev. St. But this was not the case. The defendant was tried at the regular term of the circuit court for Polk county, in December, 1882, (see chapter 90, Laws 1882,) and we must presume, in the absence of all showing to the contrary, that the jurors were regularly drawn and summoned for that term. Certainly, if any ground for a challenge to the panel existed, it should be made to appear affirmatively upon the record. We cannot presume that the jurors were iregularly summoned, or that they were not qualified jurors. The next ground relied on in the motion for a new trial is error in the instructions of the court. Here we are left in the dark as to what particular parts of the charge are deemed erroneous or prejudicial to the defendant. True, there are three portions of the charge included in brackets in red ink which may have been excepted to on the trial,...

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13 cases
  • Vogel v. State
    • United States
    • Wisconsin Supreme Court
    • January 5, 1909
    ...female assaulted. Brown v. State, 127 Wis. 193, 200, 106 N. W. 536;Lamphere v. State, 114 Wis. 193, 202, 89 N. W. 128;Osgood v. State, 64 Wis. 472, 474, 25 N. W. 529. It is not seriously contended, if the testimony of such female in this case is taken to be true, that she does not testify t......
  • State v. Chambers
    • United States
    • Idaho Supreme Court
    • February 19, 1904
    ... ... to the jury. At the close of the testimony for the state the ... defendant's attorney made an opening statement of their ... defense. This is not such an irregularity as will warrant ... this court in ordering a new trial. (Territory v ... Hargrave, 1 Ariz. 95, 25 P. 475; Osgood v ... State, 64 Wis. 472, 25 N.W. 529; People v ... Sprague, 53 Cal. 491.) Urging the jury orally to agree: ... No objection was made by the defendant to the action of the ... court at the time and no exceptions were taken or assigned ... There are no objections made or exceptions saved in ... ...
  • State v. Lottridge
    • United States
    • Idaho Supreme Court
    • March 6, 1916
    ... ... attorney general argues on behalf of the state that a failure ... to comply with this statute in such cases is a mere ... irregularity which will not warrant the granting of a new ... trial, and in support thereof cites Territory v ... Hargrave, 1 Ariz. 95, 25 P. 475; Osgood v ... State, 64 Wis. 472, 25 N.W. 529, and People v ... Sprague, 53 Cal. 491 ... "We ... do not think the Arizona case is in point, for the reason ... that the record was there silent as to whether or not the ... information had been read and the plea stated to the jury ... The ... ...
  • State v. McGruder
    • United States
    • Iowa Supreme Court
    • December 13, 1904
    ...45 Conn. 256;Comstock v. State, 14 Neb. 205, 15 N. W. 355; Com. v. Hussey (Mass.) 32 N. E. 362, 34 Am. St. Rep. 270; Osgood v. State, 64 Wis. 472, 25 N. W. 529;Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077. Contra, see State v. Gray, 53 N. C. 170;Williams v. State, 14 Ohio, 226, 45 Am. ......
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