State v. Roberson

• Decision Date: 12 April 1949
• Citation: 254 Wis. 595,36 N.W.2d 677
• Parties: STATE v. ROBERSON.
• Court: Wisconsin Supreme Court

254 Wis. 595

36 N.W.2d 677

STATE

v.ROBERSON.

Supreme Court of Wisconsin.

April 12, 1949.

Appeal from a judgment of the Municipal Court of Milwaukee county; William F. Shaughnessy, Judge, presiding.

Affirmed.

Marshall Roberson was convicted upon circumstantial evidence of having possession of marijuana. The only question raised upon this appeal is whether the trial court erred in permitting the State to prove that the defendant had been convicted in May of 1944 on a charge of burglarly in the night time.

The defendant took the witness chair in his own defense. On direct examination his attorney asked:

‘Q. Have you ever been arrested or convicted of a criminal offense? A. I have, yes.

‘Q. Have you ever been mixed up with marijuana in any way? A. No.’

On cross examination the prosecuting attorney asked:

‘Q. On February 26th, 1944, were you arrested and convicted on the charge of larceny and resisting a police officer?’

After objection and discussion by counsel of the propriety of the question the court overruled the objection. The question was then rephrased by the prosecutor.

‘Q. Now, Mr. Roberson, on February 26th, 1944, were you arrested and convicted of a charge of larceny and resisting a police officer and sentenced to six months in the House of Correction and your sentence suspended on March 1st, 1944?’

Objection to this question was sustained. Another similar question was then asked and objection to it was sustained.

The court then instructed the jury that matter contained in questions to which objections had been sustained was not evidence and should be wholly disregarded.

By the prosecutor:

‘Q. During the month of May of 1944, were you convicted in the Municipal Court of Milwaukee County on a charge of burglary in the night time?’

There was objection by defense counsel and the court overruled the objection. After a short colloquy between the defendant and the court, defendant demanding to know why he had to answer and whether he was being tried for the earlier offense or for possession of marijuana, the question was read to him by the reporter and he answered: ‘I was.’

At the close of the trial the court instructed the jury that such evidence was received solely for the purpose of aiding the jury in testing the credibility of defendant as a witness in this case.

Sydney M. Eisenberg and Harold Harris, both of Milwaukee, for appellant.

Thomas E. Fairchild, Atty. Gen., and William J. McCauley, Dist. Atty., and Joseph E. Tierney, ...