Yauke v. State

CourtUnited States State Supreme Court of Wisconsin
Citation8 N.W. 276,51 Wis. 464
Decision Date02 March 1881

Error to circuit court, Columbia county.

The plaintiff in error was found guilty of an assault with a deadly weapon upon Louis Kopp, October 10, 1879, with an intent to kill him, and was accordingly sentenced to imprisonment for the term of five years. The theory of the prosecution was, and there was evidence tending to show, that about a week prior to the alleged assault the plaintiff in error, Fred., and the complainant, Louis, being cousins, were together near Rochester, Minnesota, where Louis had been at work; that Fred. there ascertained that Louis had a note against a man there for something over $200, and advised him to have it collected, and get all his money together, and return with him to Wisconsin; and, as an inducement, falsely represented to him that his father and mother had just previously arrived there from Germany; that Louis acquiesced in the suggestion, and allowed Fred. to take the note, which he pretended to put into the hands of an attorney there for collection, and take a receipt therefor; and that soon after the money on the note was in fact collected and sent for Louis to Wisconsin; and that Louis was also induced to loan some money to Fred., who, with the money so borrowed, secretly bought a revolver at Winona, and then, keeping it concealed, he and Louis, in pursuance of the arrangement, came together to Portage City, where they arrived in the night before the assault, and at once started on foot for Monticello; and that while on the road, and just after having rested for some time, and towards morning, Fred. shot at Louis with the revolver, with the intent to kill him, and with the expectation of getting some gain to himself by way of the note or otherwise.G. J. Cox, for plaintiff.

Alex. Wilson, Att'y Gen., for the State.


1. The first error assigned is the admission of evidence, against objection on the part of Fred., of what was said and done in Minnesota in regard to the note. It is true the occurrence took place at a long distance from the place of the assault, and some days before. Yet as Fred. and Louis were, during all the time, together, or acting in concert, with a view of returning to Wisconsin, we are inclined to the opinion that such testimony had some bearing upon the question of motive, which, in view of the contradictory statements of these two parties, and the nature of the offence, was an important subject of inquiry. The testimony was quite remote, it is true, but we are not prepared to say that it had no bearing upon the question whether Fred., at the time of the assault, had any motive of gain to commit the offence. Whether the accused, in such a case, intended to kill, is a question of fact for the jury. Kunkle v. The State, 32 Ind. 320.

The rule is well stated by Roscoe, p. 92, where he says: “There are cases in which much greater latitude is permitted, and evidence is allowed to be given of the prisoner's conduct on other occasions, where it has no other connection with the charge under inquiry than that it tends to throw light on what were his motives and intention in doing the act complained of.”

2. The evidence in relation to the note being admissible, there would seem to be no substantial objection to the mere fact that a small portion of it was elicited by questions put by the presiding judge instead of the attorney.

3. It is urged upon the part of the accused that it was error for the court, against objection, to allow evidence of admissions made by him to the officers while under arrest. But this court has recently held that such evidence is admissible. Dickerson v. The State, 48 Wis. 288;State v. Glass, 6 N. W. REP. 40, 3 Wis. 82. There is no claim that the admissions were elicited by coercion, threats, or artifice, but on the contrary the evidence clearly shows that they were made freely, if not voluntarily. The evidence is to the effect that the admissions of Fred. were elicited by answers to questions put by himself. He asked: “Why did you take me up on the road in this way, and take me off?” To this he was answered: “You will know more about it when you get to Montello. Your partner says you shot a pipe out of his mouth on the road between here and Portage.” Thereupon Fred. made the admissions complained of. Certainly there is no rule of law to exclude admissions thus made, unless it be on the ground that no admissions made by a party while under arrest shall be given in evidence. But that would be contrary to the rule established by this court.

4. On the cross–examination of Fred. he testified: “Am about 30 years old. Am a married man. My wife is down in Germania somewhere.” He was then asked: “How long since you lived with her? Objected to. Overruled. Defendant excepted.” We do not construe this question as requiring the prisoner to give testimony tending to show that he had been guilty at another time of some other crime, and hence was not inimical to the rule laid down in Schaser v. The State, 36 Wis. 429, and other cases cited by counsel. He was made a competent witness in his own behalf, at his own request, and hence there can be no hardship in holding that he thereby subjected himself to the same rules of cross–examination applicable to other witnesses. Section 4071, Rev. St.; State v. Glass, 6 N. W. REP. 40, 3 Wis. 82. Mr. Greenleaf says: “The power of cross–examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests which the law has devised for the discovery of truth. By means of it the situation of the witness with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description are all fully investigated and ascertained, and submitted to the consideration of the jury before whom he has testified, and who have thus had an opportunity of observing his demeanor, and of determining the just weight and value of his testimony.” 1 Greenl. Ev. § 446.

Here the prisoner had given his version of what occurred before, after, and at the time of the alleged assault. His testimony was in direct conflict with Louis. The credibility of each was directly involved. As bearing upon that credibility we cannot say that it was immaterial to inquire how long it had been since he lived with his wife. He had already stated his age and that he was married, and that his wife was somewhere down in Germania. The testimony already in the case clearly indicated that he had not been with her for some weeks, at least. The credit to be given to a witness would seem to be materially affected by determining whether he had any home or abiding place, or had abandoned his family and become a tramp. There seems to be, therefore, no objection to the inquiry as to how long it had been since he had lived with his wife. It will be noticed that the prisoner was not coerced to answer. Whether he might properly have been committed for contempt, had he refused to answer, is a question upon which we express no opinion.

5. A...

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