Roby v. State , 96 Wis. 667 ( 1897 )

Winslow, J.

The letter of the bank cashier in Michigan to Mrs. Bice was clearly inadmissible. It was the unsworn ■statement of a man in Michigan not present at the trial .and not subject to cross-examination. Whether the statements contained in the letter were material or not, we regard its admission as prejudicial error, which must result in a reversal of the judgment. The defendant had a right to be tried upon evidence legally admissible. If the statements made in the letter concerned material facts in dispute and necessary to conviction, then the error is clearly prejudicial. If, on the other hand, the statements made in the letter, or the inferences naturally resulting therefrom, concerned matters not in issue and immaterial to the controversy, the ■error is also prejudicial, because it cannot be doubted from inspection of the letter that such facts and inferences were ■unfavorable to the defendant. In either event a new trial is necessary.

It is claimed by the plaintiff in error that he interposed a plea in abatement, on the ground that he had had no preliminary examination, and that the plea was improperly overruled without issue being taken thereon. ~We find among the papers returned in the case as the record an unverified plea of this kind, but we find nowhere in the record or bill of exceptions anything showing that the plea was ever brought to the attention of the court or ruled upon. In this situation of the record, we must assume that the court refused to receive the plea because it was not proven by affidavit or other evidence, as provided by sec. 4647, R. S.

It appears by the record that the plaintiff in error was sentenced to one year’s imprisonment in May, 1896, and consequently that his term must now have expired. This fact, however, makes no difference with the disposition of the case. A person- convicted of crime may prosecute his writ of error while serving his sentence, and the fact that he may serve out his entire sentence before the decision of his case does not affect his right to a reversal of the judgment if it be erroneous. The mere payment of a judgment in a civil cause does not operate to bar or waive the right to appeal therefrom (Sloane v. Anderson, 57 Wis. 123), and for stronger reasons the compulsory working out of a judgment in a criminal case does not debar a man from obtaining a reversal of an erroneous conviction, and thus removing the stigma which wrongly rests on his name and reputation.

By the Court.— Judgment reversed, and action remanded for a new trial.