Gordon v. State , 158 Wis. 32 ( 1914 )

Winslow, O. J.

The prosecution of Troy was a prosecution under sec. 1567, Stats., for giving whisky to an Indian, i.e. the defendant. In .that case there were two issues: (1) whether Troy gave the defendant any whisky, and (2) whether the defendant was an Indian. On the trial of that case the defendant was a witness. The claim of the state in the present case is that she then falsely testified that Troy gave her no whisky. The serious claims made by the defendant will be briefly considered.

1. That there was no valid complaint filed or warrant issued in the preliminary examination in the present case. The bill of exceptions states that both the complaint and warrant were offered and received in evidence. Only the warrant, however, is returned with the bill. The fact is therefore undoubted that there was a complaint filed, and as the warrant recites the substance of the complaint and shows that it conformed substantially to the requirements of sec. 4661, Stats., regulating informations for perjury, it affirmatively appears that the complaint was sufficient. Only a substantial statement of a criminal offense in the complaint is necessary to give the examining magistrate jurisdiction. Butler v. State, 102 Wis. 364, 78 N. W. 590.

2. The claim that the defendant was in fact a civilized person and not an Indian was absolutely immaterial. That question was involved in the Troy case,- but not in the present case. In the Troy case he was entitled to an acquittal either if Charlotte Gordon was not an Indian or if he did not give her any whisky. A witness who wilfully testified falsely as to either fact was guilty of perjury whether the other fact was proven or not. A wilful false swearer is not purged of crime because a successful defense exists concerning which he gave no testimony. If the defendant testified falsely in the Troy case as to the fact of Troy’s giving her liquor, her criminal responsibility would not be changed in the least, even if it were demonstrated that she was not an Indian. Both issues were material and remained material to the end.

3. Troy was a witness on behalf of the state, but was asked no questions concerning tbe proceedings upon bis own trial. Upon cross-examination be was asked wbetber tbe defendant did not subsequently correct ber first testimony in tbe Troy case and admit that Troy did give ber some liquor. Objection to this question was sustained and error is assigned on tbe ruling. The ordinary rule is that cross-examination of a witness not a party to tbe suit should be limited to tbe matters upon which tbe witness has been examined in chief,, although this rule is not unyielding, and much deference is paid to tbe discretion of tbe trial court. In tbe present case it appears that tbe court allowed tbe witness to state that defendant (after having first denied tbe fact that liquor was given ber by Troy) at a subsequent period admitted tbe fact. So in any event there was no prejudice.

4. It appears by tbe bill of exceptions that when tbe jury first returned into court and stated that they bad agreed on a verdict they were asked what it was, and tbe foreman answered “Guilty;” that tbe court asked to see it, and tbe foreman produced a written verdict from bis pocket and on looking at it discovered that be bad by mistake signed tbe blank verdict of “Not guilty” (tbe jury having been furnished with two blanks when they retired), whereupon they were allowed to again retire, and upon their return into court announced again that their verdict was “Guilty.” Tbe mistakenly signed verdict of “Not .guilty” was preserved, and it seems that tbe clerk of court recorded in bis minutes that tbe jury first returned a verdict of “Not guilty.” It is now claimed that tbe clerk’s minutes must control and that tbe defendant was in fact acquitted. This position is untenable. As to all proceedings on the trial the bill of exceptions imports verity. It is not open to contradiction.

No other questions are deemed worthy of special treatment.

By the Court. — Judgment affirmed.