Ware v. State

• Decision Date: 01 April 1930
• Parties: WARE v. STATE.
• Court: Wisconsin Supreme Court

201 Wis. 425

230 N.W. 80

WARE

v.STATE.

Supreme Court of Wisconsin.

April 1, 1930.

Error to review a judgment of the Circuit Court for Sauk County; A. G. Zimmerman, Circuit Judge. Affirmed.

Prosecution of Hazel Ware for adultery alleged to have been committed on February 22, 1928. From a judgment entered October 14, 1929, sentencing defendant to the state prison for one year, Hazel Ware appealed.R. H. Gollmar and J. W. Frenz, both of Baraboo, for appellant.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Frank B. Moss, Dist. Atty., of Baraboo, for the State.

STEVENS, J.

(1) The chief question presented is whether the court erred in admitting the diary of the defendant in evidence. Without this diary, the proof is sufficient to sustain the verdict of guilty, although there was such conflict in the evidence as might have led the jury to find the defendant not guilty. But the diary presents such persuasive evidence of guilt as to lead any open minded trier of fact to render a verdict of guilty. Upon this state of the record, the substantial rights of the defendant were prejudiced if the diary ought not to have been received in evidence.

Defendant's former husband, while he was living in the same house with the defendant, as husband and wife, procured the diary by taking a key from the defendant's purse and unlocking the chest in which the diary was kept. The husband was in his own home, where he had a right to be. If he committed any wrong, it was in unlocking the chest and taking the diary therefrom without the consent of his wife.

The case does not involve any question of unreasonable search or seizure, or the act of any governmental agent or public officer. If any constitutional right of the defendant was violated, it was that which provides that she shall not be compelled to be a witness against herself.

[1] Defendant had voluntarily committed the evidence of her guilt to writing. In substance, the situation presented was not unlike that which would have been presented if she had made admissions to others or had written out a confession of guilt. In either case, the reception of such evidence would not come within the constitutional prohibition as to being compelled to be a witness against one's self. But it may be said that it is not like the case of a voluntary admission or confession, because the husband obtained the diary wrongfully, without her consent.

[2] The fact that such a writing is procured wrongfully, and without the consent of the defendant, does not render it inadmissible in evidence. “The common–law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. * * * Nor can we * * * subscribe to the suggestion that the courts have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common–law doctrine generally supported by authority. There is no case that sustains, nor any recognized textbook that gives color to, such a view.” Olmstead v. United States, 277 U. S. 438, 467, 468, 48 S. Ct. 564, 569, 72 L. Ed. 944, 951, 952.

Mr. Wigmore in his scholarly work on evidence has, by the citation of a large number of decided cases, established the...