Roszczyniala v. State

• Decision Date: 23 June 1905
• Citation: 104 N.W. 113,125 Wis. 414
• Parties: ROSZCZYNIALA v. STATE.
• Court: Wisconsin Supreme Court

125 Wis. 414

104 N.W. 113

ROSZCZYNIALA

v.STATE.

Supreme Court of Wisconsin.

June 23, 1905.

Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.

Peter Roszczyniala was convicted of rape, and he brings error. Affirmed.W. E. & Frank P. Burke, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and W. D. Corrigan, Asst. Atty. Gen. (E. T. Fairchild, of counsel), for the State.

CASSODAY, C. J.

Upon the trial the plaintiff in error was found guilty, as charged, with having on July 7, 1904, committed the crime of rape upon one Agnes Zielinski––a little girl only nine years of age. That such a crime was committed upon the little girl upon the day named, by some one, is undisputed. The defense is that the plaintiff in error was not the man who committed the crime. The testimony on the part of the state tends to prove that on the afternoon of the day named the accused was seen in the neighborhood of the little girl's home at 1153 Second avenue, in the city of Milwaukee, by Agnes and three other little girls, whose ages ranged from 12 to 14 years; that he talked to them, and asked them the way to Eighth avenue; that they all noticed that he had two gold teeth; that soon after he took Agnes to Austin's woods, so called, near the outskirts of the city, some half or three–quarters of a mile distant from her father's home, and there committed the offense charged; that in going there they passed the residence of one Gielow, and later the flagman's shanty, and so on over the railroad track into the woods mentioned. Gielow was sworn as a witness on the trial, and testified that he did not at the time know the name of the accused or of the little girl, but that he saw them passing his house together on the afternoon of the day in question. The flagman was sworn, and testified on the trial that he had known the little girl for about a year, by her first name only; had noticed her in and about the railway tracks, picking up coal and wood; that on the afternoon of the day in question he saw her and the accused passing together over the railroad tracks where he was stationed; that soon after the little girl's mother came and inquired of him if he had seen her little girl. There are other facts and circumstances, including certain admissions of the accused, tending to prove that he committed the offense. True, when the little girl next saw the accused, which was about five weeks afterwards, and at the police station, she stated that he was not the man who committed the crime; but on the next day she was again taken to the police station, and in the presence of the accused, and she then recognized him as the man who committed the offense, and described the clothes he wore at the time, and the fact that he had two gold teeth. So it is true that there is some discrepancy in the testimony as to the clothing he wore at the time, but there seems to be a general agreement among the witnesses for the state that on the afternoon in question the accused wore a black hat, a black coat, striped trousers, and a white shirt. The testimony on the part of the accused tends to prove that he was not at any of the places mentioned on the afternoon in question, but in another part of the city. As indicated, the identification of the accused with the person who committed the crime was the principal question at issue, and that was a question of fact for the jury. However simple the question may seem to those unaccustomed to reason on the subject, it is nevertheless regarded as one of the difficult questions which courts and juries are called upon to determine. Harris' Law of Identification, § 3. The reason is obvious. The appearance of the person whose identity is in question can be easily changed. Id. The identifying witnesses are quite likely to differ more or less in their opportunities and capacities for perception and discrimination. Id. And so it is stated by the authorities that “opinions may be given by a witness on the question of identity,” since this is “one of the cases in which it is impossible for the witness to state all the facts on which his opinion is based.” 15 Am. & E. E. Law (2d Ed.), 924. Thus it is said in a late case in Massachusetts that “the identity of a third person always is a matter of inference and opinion, but it is an opinion which any one who remembers facts on which to base the inference may give. * * * A material fact may be proved by legitimate inference as well as by direct testimony.” Com. v. Kennedy, 170 Mass. 18, 24, 25, 48 N. E. 770. See, also, State v. Seymour, 94 Iowa, 699, 63 N. W. 661;Yarbrough v. State, 105 Ala. 43, 16 South. 758;Thornton v. State, 113 Ala. 43, 21 South. 356, 59 Am. St. Rep. 97;People v. Rolfe, 61 Cal. 540;State v. Powers, 130 Mo. 475, 32 S. W. 984;State v. Lytle, 117 N. C. 799, 23 S. E. 476;State v. Harr, 38 W. Va. 58, 17 S. E. 794. The evidence which was admissible and admitted, within the scope of these authorities, is amply sufficient to support the conviction.

2. Error is assigned because evidence was admitted of certain confessions made by the accused. It is conceded by the state that, in order to be admissible, the confessions must have been voluntarily made. In ruling upon the question the trial court held, in effect, that if the accused, while under arrest, was induced by hope or fear to make the confession, and made the same relying upon such statement, then the confession was inadmissible. Such is the established rule. 6 Am. & E. E. L. (2d Ed.) 531. But it is equally “well settled that the mere request, advice, or admonition to tell the truth will not vitiate a confession induced thereby.” Id. “There is no fixed rule as to what will constitute a voluntary or involuntary confession. Each case must depend upon its own facts and circumstances; the test in every case being whether it was or was not the free, uninfluenced statement of the party making it.” 3 Ency. Ev. 304, and numerous cases there cited. For further discussion of the subject of such admission of evidence of such confessions, see Hintz v. State (decided herewith), 104 N. W. 110, and particularly Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568. Of course, the trial court, in ruling upon such admission, was required to determine, from all the facts and circumstances in the case, whether such admissions were made voluntarily or not. Connors v. State, 95 Wis. 77, 69 N. W. 981. Such determination is controlling unless it appears satisfactorily from the record that such determination was clearly against the evidence. Id. In that case it was held that “a confession need not have been volunteered or spontaneous in order to render evidence thereof admissible; it being sufficient if it was made freely, without compulsion, and voluntarily, without promise or persuasion.” Here the most that was said to the accused by any of the police officers in that regard was to the effect: “Why don't you tell the truth?” And again the inspector said to him: “You better tell the truth about this matter. They have all identified you”––referring to the little girls and the flagman. But upon being questioned by the district attorney, the inspector stated that what he meant to say was: “Why don't you tell the truth about this matter?” So a bystander in the room said to him: “Give in one way or the other. It would be better for you.” Of course, the state was not responsible for what the bystander happened to say. In response to the question why he did not tell the truth, he said to the mother of the little girl: “Forgive me. Wait until my mother comes to make it up to you”––or somewhat similar words, varied by the different witnesses. Another admission in response to such question was: “I will tell you. You send for my wife, and have her come here this afternoon, and I will tell you all.” And when his wife came he said: “Why did you tell about the blood spots on that shirt?” This refers to blood spots on the shirt of the accused which had been obtained from his wife, and claimed...