State v. Baker
| Decision Date | 03 April 1962 |
| Parties | STATE of Wisconsin, Respondent, v. Albert BAKER, Appellant. |
| Court | Wisconsin Supreme Court |
Milton T. Murray, Milwaukee, for appellant.
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Hugh R. O'Connell, First Asst. Dist. Atty., Milwaukee, for respondent.
The complaint was signed by a police officer on information and belief. At the trial the only evidence of defendant's guilt was the uncorroborated testimony of James A., a fifteen year old boy, that defendant took James into a shed behind defendant's filling station and there they cooperated in the indecent liberties with which defendant was charged. Defendant denied James' accusations in every particular, and had a number of witnesses whose testimony tended to throw doubt on James' narrative.
Successful prosecution of the case, and likewise successful defense, depends completely on the jury's belief or disbelief in James' veracity. After the State had rested and the attorney for the defendant had called a number of witnesses whose evidence to some extent impeached James' story of his presence in the shed at the time in question, defendant's attorney called Rev. Clarence J. Schouten and then there occurred the following:
'DIRECT EXAMINATION BY MR. TIERNEY:
Then there was some argument on the law before the court by the respective attorneys and the court told defendant's counsel that he could have till two o'clock P.M. to present some authority to permit the proffered evidence and court was adjourned until that hour. The record does not show the length of that interval but we do not believe that is important. Counsel did not present any authorities after the recess and the court made no further ruling, wherefore the state's sustained objection to the evidence of James' reputation for truth and veracity continued unchanged.
The defendant assigns as reversible error the court's denial of defendant's right for his witness to be heard on the question of James' reputation in the community for James' truth and veracity. Authority for admitting such evidence is easily found, though defendant's counsel apparently did not find it during the allotted time or at least did not produce it for the court.
On this appeal the State concedes that the court was in error in sustaining the objection, so no extensive research by us on the question is required for the purposes of this appeal. However, we note 58 Am.Jur., Witnesses, sec. 725, page 391, stating:
'* * * And, indeed, the usual method of impeaching the credibility of a witness as one who will not tell the truth and is unworthy of belief is to show the bad general reputation of the witness for truth and veracity in the community where he lives, by impeaching witnesses who know that reputation.'
In our own state we find Duffy v. Radke (1909), 138 Wis. 38, 40, 119 N.W. 811, wherein we said:
When the court permitted the State to shut out evidence bearing upon James' reputation for truthfulness under the circumstances of the trial it was an error going to the heart of defendant's guilt or innocence. The State's present contention is that this acknowledged error was cured, or at least rendered innocuous, by the failure of defendant's counsel after the recess to convince the court of its error, in which case it could be presumed that the court would reverse its erroneous ruling. We do not think the State can throw upon defendant the onus of the error made at the instance of the State. Proper objection being made, the error is not cured because defendant was unable to persuade the court that error was committed.
Defendant complains of another error alleged to call for a reversal.
When defendant was on the stand in his own defense counsel for the State, on cross-examination, asked...
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