State v. Brozyna ( 1939 )

I agree that a jury issue existed and that most of the assignments of error are not well founded, but I am convinced that a serious question arises over the treatment of the character evidence offered by the defendant.

In a trial of one charged with crime it is proper for the defendant to offer affirmative evidence of his reputation for a trait of character which would tend to make it unlikely that he would commit the act. If the defendant can establish good character he is entitled to the benefit of that fact in the consideration of his case by the jury. The estimate attached to the defendant by witnesses familiar with his repute in the community of his residence is a matter which may be inquired into. Well-defined rules govern the admissibility of such evidence. When the defendant is allowed to show his own good character to aid in the demonstration of his innocence, the prosecution is allowed to use the opposite fact for the opposite purpose. Wigmore, Evidence, p. 268, § 55; Wharton, Criminal Evidence, p. 456, § 330. Again established rules govern the admissibility of this opposing evidence. Schwartzv. State (1920), 171 Wis. 306, 177 N.W. 15. A witness to reputation cannot give the result of his own personal experience. He is confined to evidence of general reputation. Testimony tending to prove the defendant guilty of another distinct offense is not admissible for the purpose of raising an inference that he is guilty of the offense charged, and it is equally improper to raise by insinuation a suspicion that the police know of other guilty conduct.

After the court had received character testimony offered by the defendant, a police officer was called in rebuttal and the following interchange took place:

"Q. Mr. Heitzke, did you ever get any call from the Brozyna home at any time last year?

"Mr. Evrard: Improper rebuttal testimony.

"Q. As to —

"Mr. Evrard: And further ground that it is immaterial.

"The Court: I don't know.

"Mr. Bong: Just rebuttal as to his good character.

"The Court: Ask him about his character; never mind about the calls.

"Q. You know anything about the reputation and character of Edmund Brozyna? A. Yes.

"Q. What is that reputation? A. We had a call —

"Court: No, what is it, good or bad? What is his reputation; you say you know what it is, good or bad? (Witness hesitates.) A. Well, that is a pretty direct question.

"Q. If you can't answer, say so; if you can answer, answer.

"Q. What was your answer?

"The Court: He hasn't answered it.

"A. Was that question put to me whether his character was good or bad?

"The Court: With respect to what he wants to know?

"Q. His reputation in the community for law-abiding citizen?A. Well, it is bad.

"Q. Have you any facts that you base that statement on?A. As a police officer only.

"Mr. Evrard: I move that that answer be stricken from the record and that the court instruct the jury to disregard the statement of the police officer.

"The Court: Motion denied."

It seems to me that the witness did not unfold any general reputation, that in spite of the effort of the trial court the exact trait of character involved was lost sight of and that the testimony of this officer was limited by and based on what occurred when the "call" came, or on what he was told by Williams, Jacobs, and Scanlan. Under the rule ofSchwartz v. State, it was error to refuse to strike this testimony. The jury had to decide whether the defendant, or Williams, was telling the truth. There was corroboration for the testimony of Williams, as there was for that of the defendant. Williams' testimony and that of his corroborating witnesses was affected by convictions of crime. In weighing this testimony offered by the state against testimony offered by the defendant to prove that he had not participated in the crime, the defendant's good reputation, if it existed, was a fact to be given consideration. If this proof was improperly rebutted, a serious damage to the defendant's case must have occurred. What effect was given the officer's testimony on this matter? It was emphatically placed before the jury. It would tend to create an impression that the prosecution had facts, which they were not permitted to disclose, showing bad character of the defendant. It could have no influence other than to diminish the weight of the testimony of neighbors who said that the defendant's character was good. The motion to strike should have been granted.

Good character cannot avail against facts strongly proven, as in Schwartz v. State. But where the record presents a controversy in which the jury might reasonably find the defendant not guilty, prejudicial error exists when a fact so favorable as good character is overthrown by incompetent evidence of the kind set forth. Alsheimer v. State (1917),165 Wis. 646, 163 N.W. 255. Because of this I am unable to concur in the affirmance of the judgment.