Griswold v. State , 24 Wis. 144 ( 1869 )

DixoN, C. J.

Counsel for the plaintiff in error is mistaken, when he says the conviction is based entirely on supposed admissions. Aside from his confessions given in evidence against the plaintiff in error, there was other testimony, which was direct, going to establish his guilt. We refer to the clear and positive testimony of Mrs. Hare, corroborated in some particulars by that of her husband, upon which, had there been no other evidence in addition to that of the complaining witness, the verdict could not have been set aside. And the argument of counsel that Mrs. Hare was discredited, or her testimony contradicted by the witnesses Woodman and Manning, seems to us altogether unfounded. The fact that those witnesses saw the plaintiff in error, not far from the same time, in possession of a mare colt of about the same size and age, though otherwise differing in description, by no means disproved Mrs. Hare’s statement. They saw him at places distant from each other, and some miles away from the home of Mrs. Hare, and there is nothing to fix or identify the times. They may have seen him several days before, or several days after,the time spoken of by Mrs. Hare ; so that the facts to which they testified, if they may be said to have had any, had but the slightest possible tendency to show that Mrs. Hare was mistaken. With opportunity for obtainingi accurate knowledge fully equal to that of either of those witnesses, and which she did not fail to improve (for. it seems curiosity prompted her to examine the animal closely), the jury may have believed, instead of Mrs. Hare being mistaken, that the other witnesses had fallen into error; or, what is altogether more likely, as being the strongest and most rational inference to be drawn from the testimony, the jury may have found that neither was mistaken, but that Mrs. Hare saw the accused in possession of the colt in controversy, and the other witnesses saw him in possession of another.

There was no error in the instructions of the court to the jury. That part of the general charge to which exception was taken, was in these words : “ Where one part of a statement inculpates the defendant, and another would excuse him, the whole statement must be considered by the jury, but they are not bound to give equal credit to both branches of the statement; but, if the other evidence requires it, the jury may believe the confession of guilt, and reject that part of the statement exculpating the accused.” This was a correct statement of the law as we find it laid down in all the books of authority and elementary works on the subject. Mr. Greenleaf states it in almost the same words, and gives long lists of adjudications which clearly support it. 1 Greenl. on Ev. §§ 218, 201.

Whether, upon such confession alone, the jury could reject the exculpatory statements, and find the accused guilty on the others, is not a question here presented. As observed by Mr. Greenleaf, it is quite improbable that any jury would do so. And the same writer says (idem, § 217), whether extra-judicial confessions, uncorroborated by any other proof of the corpus delicti, are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. But this is not a question to be now considered, for the reason that here was other very strong corroborating proof, and the jury were instructed that they might reject the exculpatory part and believe the other branch of the confession, if the other evidence required it.

The instructions asked for the accused were properly refused. The first was a mere abstract proposition of law, which, though it may have been correct' enough in itself, had no possible application to the facts of the case made before the jury. The second was the opposite of that part of the general charge to which exception was taken, and was rightly refused for reasons already given.

As to the statement found in the motion for a new trial, that no officer was sworn to take charge of the jury when they retired to consider their verdict, it is sufficient to say that the record does not support it. A statement of fact in a motion made and filed in a cause is not evidence of the fact. For any thing that appears, the court here may have overruled the motion on this point upon the very ground that such was not the fact. We can consider only such questions as come properly certified to us in the bill of exceptions, or are otherwise matters of record, and cannot hold that any proceeding was irregularly taken, unless it so appears from the record. The fact, if it were so, that no officer was sworn, should have been certified in the bill. On this point we refer to the authorities cited in the brief of the attorney general.

By the Court.— Conviction affirmed.