State v. Glass

• Decision Date: 21 September 1880
• Citation: 50 Wis. 218,6 N.W. 500
• Parties: THE STATE OF WISCONSIN v. GLASS.
• Court: Wisconsin Supreme Court

50 Wis. 218

6 N.W. 500

THE STATE OF WISCONSIN

v.GLASS.

Supreme Court of Wisconsin.

Sept. 21, 1880.

Reported by judge of fourth circuit.

The case comes here on the report of the circuit judge, which contains the exceptions relied upon as grounds for a new trial. The facts stated in the report, and which are essential to an understanding of the exceptions and the questions presented for determination, are briefly as follows: An information was duly filed in the circuit court, charging the defendant with the crime of murder. On his trial, and against his objection, the court permitted the magistrate, before whom a preliminary examination of the defendant on the same charge had been held, and on which examination the defendant had voluntarily testified as a witness in his own behalf, to testify as to what defendant then stated, under oath, as to his encounter with the deceased. After the defendant had introduced his testimony and rested, (he having testified in his own behalf,) and after the prosecution had introduced some testimony in rebuttal, the court, against a like objection, permitted the prosecution to recall the defendant for further cross–examination. The district attorney thereupon showed him a letter and asked him if he wrote or signed it, and he answered that he did not.

“When the jury were instructed, and before they retired for final deliberation, the circuit judge instructed and directed them to find one of three verdicts, all reduced to writing by the judge, and such writing was handed to one of the jurymen as they retired; that the court read the three forms of verdict from his written charge, but said to the jury, which was not in the written charge or taken down by the reporter, ‘You will find and return one of the three verdicts in writing now handed to you, and your foreman will sign the verdict as found;’ that said jury returned into court, and, on being asked if they had agreed upon a verdict, one of their number said that they had, and handed to the judge one of the said three verdicts in writing, as delivered to them by the circuit judge; thereupon said judge took said paper and said. ‘Gentlemen of the jury, you will listen to your verdict as recorded by the court;’ and thereupon the said judge read: ‘We, the jury, find the defendant, Albert E. Glass, guilty of manslaughter in the second degree,’ and the same was so entered as the verdict on the seventh day of July, 1880. The judge also asked counsel for defendant if he desired the jury polled, and, said counsel consenting, the jury were polled before the verdict was recorded; that the counsel for the defendant was asked before the jury retired if he consented to the three forms of verdict in writing being handed to the jury, and he replied he did.”Alexander Wilson, Att'y Gen., for plaintiff.

Hudd & Wigman, for defendant.

LYON, J.

The following questions, arising upon the exceptions, are submitted in the report of the circuit judge for the decision of this court: “Should a new trial have been granted–– First, because of the admission, against objection and exception, of the testimony or evidence of what defendant had admitted or said under oath, and while under arrest, charged with the crime alleged in the information? Second, in allowing and permitting, against objection and under protest, the calling of the defendant to the witness stand, after he had once been examined and dismissed. Third, was it error to submit written forms of a verdict to a jury in cases of this nature? These questions will be considered and determined in their order.

1. In Dickerson v. The State, 48 Wis. 288, Dickerson and Mrs. Mack were under arrest, charged with the murder of George Mack. On the examination of Mrs. Mack, Dickerson was sworn and examined as a witness for the state. On his trial for the same crime the prosecution was permitted to give evidence of his testimony on such examination. After very careful consideration of the authorities, this court held that the evidence was properly admitted. The case differs from this only in that the testimony of Dickerson was given in behalf of the state, on the examination of another charged with the commission of the same crime; while here the defendant testified in his own behalf on his own examination. The judgment of the court went upon the ground that the free and voluntary statements or confessions of a person on trial for a crime, whether under oath or not, may be given in evidence against him. We can discover no sound reason why the rule is not applicable as well to a case where the statements or confessions are made by the accused, when testifying in his own behalf, as a witness on his examination or trial, as when testifying upon the examination or trial of another charged with the same crime. Statements made by the accused out of court concerning the crime charged, if freely and voluntarily made, may always be proved against him on his trial. Why should...