Traverse v. State , 61 Wis. 144 ( 1884 )

Cassoday, J.

We have carefully considered each of the numerous errors assigned, but deem it only essential here to present our views as to one. The sheriff was allowed, on behalf of the prosecution, to give evidence tending to show that four or five days after the shooting he went to Mary’s house to arrest her and Traverse, about eleven or twelve o’clock at night, and that he found them under circumstances indicating that they were then occupying the same bed. This seems to be the only testimony tending to prove adultery. On this point the court charged the jurjr as follows: “The prosecution claim that the defendant was living with Mrs. Miles in a state of adultery. This fact, if true, would not deprive the defendant of the right of self-protection. He would still be a boarder, and as such entitled to protection. Adultery is, of course, & crime, and defendant, if he was guilty, as claimed, was guilty of a great wrong towards Miles; but this fact would not be sufficient to license Miles in violently invading his wife’s home to do him injury. The testimony tending to show adultery was admitted only as tending to show a motive for crime, and to rebut the presumption of innocence arising from any apparent want of motive, and as such you should consider it. It may be deemed material in determining whether the defendant fired the shot in question as an honest and justifiable act of self-defense, or for some other and less justifiable motive.” Thus the charge made the act of adultery, four or five days after the shooting, material evidence as tending to prove that the motive for the shooting was' not self-defense, but the permanent removal of George Miles, and also material evidence as tending to rebut the presumption of innocence arising from the mere circumstances under which the shot was fired. We are unable to perceive the relevancy of the evidence upon either proposition. It will be observed that it was not evidence tending to prove adultery prior to the shooting, nor was it given in connection with any such evidence. Had it been, a different question would have been presented.

Adulterous intercourse existing at one time may be presumed to continue while the parties remain under the same roof and with no change of circumstances; but a single act of adultery does not of itself tend to prove a prior act of adultery. Lawson v. State, 20 Ala. 75; Bonsall v. State, 35 Ind. 460. No more would proof of a single act of adultery, four or five days after the shooting, tend to rebut any presumption of innocence arising from the circumstances under which the shot was fired. Yet that seems to be the effect of the charge to the jury.. In fact, the charge went still further, and authorized the jury to find from - such subsequent act of adultery not only that all presumption of innocence arising from the circumstance under which the shot was fired had been removed-, but that at and prior to the time of the shooting, the accused had been living in adulterous intercourse with Mrs. Miles, and that he deliberately shot her husband, under the false pretense of self-defense, in order that he might continue unmolested such intercourse. Of course, if the accused was guilty of adultery, that was a separate and independent crime by itself, for which he might be tried and convicted; but evidence of such crime would be irrelevant on the trial of the accused- for shooting thé deceased with intent to murder him, unless the relations of the parties, the time of the alleged adultery, and the circumstances were such as to furnish the accused, at the time of the shooting, with a motive to destroy the life of the deceased. Certainly the alleged adultery here sought to be established, standing by itself, had no logical bearing upon any fact involved in the issue upon which the accused was being tried. Such adultery would have been just as liable to occur if the accused was innocent of the crime for which he was tried as though he were guilty. So his guilt or innocence of the crime for which he was tried cannot be made to depend upon the presence or absence of adultery four or five days after the alleged murder. A fact, to be evidence, must tend to make evident, clear, manifest — to prove. The fact here proved did not. Ordinarily, evidence of a separate and independent crime cannot be giren in evidence on the trial of another crime, even when committed before. Schaser v. State, 36 Wis. 429. We do not say that it might not in a case like this. That question, is not before us, and, of course, not decided.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of St. Oroix county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.