Rounds v. State

• Decision Date: 30 January 1883
• Parties: ROUNDS AND ANOTHER v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

57 Wis. 45

14 N.W. 865

ROUNDS AND ANOTHER

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed January 30, 1883.

Appeal from circuit court, Dunn county.R. H. Start, for plaintiffs in error, Theodore Rounds and another.

H. W. Chynoweth, Asst. Atty. Gen., for defendant in error, State of Wisconsin.

ORTON, J.

The first exception in the record, although not noticed in the brief, is to the jury panel, on the ground that it was not kept full by special venire. The statute (section 2537, Rev. St.) leaves the matter of the number to be summoned to the discretion of the court. The exception noticed in the brief of the learned counsel of the plaintiffs in error will be considered in their order.

1. Hon. L. P. Weatherby, an attorney at law, appeared to assist the district attorney in the prosecution. The counsel of the plaintiffs in error objected to such assistance, and the court overruled the objection. This action of the court was tantamount to its permission that Weatherby assist the district attorney on the trial, and the district attorney being present and at least not objecting, tacitly assented thereto, which was practically equivalent to a request that he should do so, This practice is sanctioned in principle by the decision of a similar question by this court in Lawrence v. State, 50 Wis. 507; [S. C. 7 N. W. REP. 343.] It did not appear, nor was it offered to be shown, that Weatherby had any pecuniary interest in the case, or had been employed for any fee or reward. This question has been so recently decided by this court that it is unnecessary to refer in this opinion to the many cases cited by the learned assistant attorney general.

2. The court sustained the peremptory challenge of the two jurors, Beyer and Hill, by the state, against the objection of the plaintiffs in error. The objection is based upon the assumption that the peremptory challenges of the state had been already exhausted. By the rule admitted to be correct by the learned counsel of the plaintiffs in error, and sanctioned by the case of Schumaker v. State, 5 Wis. 324, the state and the defendants have the right of alternate challenge, and if it is not exercised in full, it is not thereby waived or lost. In this case the two defendants had each 24 challenges, making in all 48. According to this rule the state could challenge one juror and the two defendants four, and the state was not bound to challenge until after such four challenges by the defendants. This being so, the state had not lost their right to challenge these two jurors, as two of its twelve challenges allowed by law. Section 4701, Rev. St. has no application to this rule, being confined to challenges for cause.

The third, fourth, sixth, seventh, eighth, and ninth exceptions may be disposed of together. They all depend generally upon the question whether the statements or testimony of the defendant Shea, and of the witness Wilson, taken down in short–hand by a stenographer at the time of the examination before the magistrate, and the statement or testimony of the defendant Rounds, taken down in the same way by a stenographer at the time of the examination before the coroner's jury, and afterwards written out at length by him, must be introduced as records to show what such statement or testimony was, as admissions or otherwise, instead of oral evidence by the stenographer or others as to what statements they made or what testimony they gave on such examination. The court ruled, against the objection of the defendants, that such testimony and statements so taken down by the stenographer could not be introduced or received in evidence as records, or as the testimony of these several persons reduced to writing by the magistrate on these examinations, but that such statements and testimony might be proved by oral evidence, and so they were proved as the admission of the defendant Shea, and as the statements of the witness Wilson, to contradict her evidence on the trial, and as the admissions of the defendant Rounds, as evidence against him, or in rebuttal or contradiction of his testimony on the trial.

Whatever the rule may be as to the right of proving by oral testimony what the party or witness stated on oath on such examination, in case the magistrate had reduced to writing such statements and made them records under the statute, it is very clear that neither of these written–out statements or minutes of the evidence found among the papers in the case come within such rule. These minutes of the testimony made by the stenographer were mere fugitive papers, and no part of the record. (1) They were not “reduced to writing by the magistrate or under his direction,” or “signed by the witnesses,” as required by section 4790, Rev. St., on preliminary examinations, or “reduced to writing by the justice of the peace or some other person by his direction,” or “subscribed by the witnesses,” as required by section 4872 on inquests. It does not appear that these minutes were made even in shorthand under or by direction of the magistrate, or signed by the witnesses, or that they were in any way adopted or authenticated by him. If sought to be introduced in evidence they would be mere hearsay testimony, and that given in an improper manner. They may be correct or incorrect, so far as any official or record sanction is concerned. If they had been allowed to be introduced against the objection of the defendants, it would have been clearly erroneous, and the judgment for that reason would have been reversed. They were proper as memoranda made at the time by the stenographer, and might have been referred to by him to refresh his memory, but could not be read as evidence. This disposes of all these exceptions, only it is claimed by the learned counse...