The plaintiff in error was convicted of having, on December 14, 1904, taken improper and indecent liberties with the person of one Eranceska Heine, a female
1. Counsel for the accused insists that the evidence is insufficient to sustain the verdict, and he urges the improbability of the offense having been committed upon twelve different grounds. After careful consideration we are unable to find in any, or all of them together, any substantial reason for holding that the verdict is not sustained by the evidence. Nor do we feel called upon to discuss in detail any of them. It follows that the verdict must stand, unless the judgment is to be reversed for one or more of the numerous errors assigned.
2. Error is assigned for improper cross-examination of the accused. It appears that after five witnesses on the part of
3. Error is assigned because the court refused to allow the accused to be in the presence and hearing of the little girl 'during the examination of her by the court, not under oath, as to her qualifications to testify. What actually occurred, as ap
4. Error is assigned for remarks made by the court during the trial. Counsel submits thirteen excerpts from the record of such remarks, but fails to give the circumstances under
5. Error is assigned because the court excluded testimony of the accused as to what his wife told him or as to what he heard her say. She was not a witness in the case. With certain exceptions not here involved she was not competent to be a witness in the case either for or against her husband. Carney v. Gleissner, 58 Wis. 674, 17 N. W. 398; Smith v. Merrill, 15 Wis. 461, 462, 44 N. W. 759; Crawford v. State, 98 Wis. 623, 74 N. W. 537; Miller v. State, 106 Wis. 156, 162, 81 N. W. 1020; Kraimer v. State, 117 Wis. 350, 352, 353, 93 N. W. 1097. Much less were her statements or declarations competent evidence. So the court properly excluded receipts of the wife to the accused for the same reason. So the court properly excluded testimony offered on the part of the defense as to what the witness heard any of the parties say, or what he heard the accused say, or what was said either by the accused or anybody else in the presence of the little girl. So there was no error in striking out the testimony of the accused to the effect that Dr. Sure told him that he had no right to go into the house where the little girl was without being called there. The evidence so excluded was mere hearsay. Hear the close of the testimony the defense again attempted to prove what the wife said to the witness about the accused, and it was excluded. Thereupon the district attorney and the ac
6. Error is assigned because the court admitted testimony of the little girl as to the accused taking indecent liberties with her person a short time prior to the time in question. Such evidence was clearly admissible, as tending to prove the motive and intent of the accused in doing the acts complained of. Benedict v. State, 14 Wis. 423; Proper v. State, 85 Wis. 615, 628-631, 51 N. W. 1035; Lanphere v. State, 114 Wis. 193, 200, 201, 89 N. W. 128; Bannen v. State, 115 Wis. 317, 330, 331, 91 N. W. 107, 965; 4 Elliott, Evidence, § 2720, and cases there cited. So there was no error in 'allowing the little girl, on redirect examination, to testify to the effect that the reason why she told the accused that what she had said about his committing the offense was all a lie was because she was afraid he would kill her. On rebuttal a witness for the state was asked what conduct or language he saw and heard between the accused and his wife when he went to the saloon at the time in question. In overruling the objection to the question the court said: “It is only relevant by reason of the testimony given by the defendant on this subject.” Having opened the door for the admission of such testimony the accused is in no position to take exception thereto. Schissler v. State, 122 Wis. 365, 372, 373, 99 N. W. 593. Counsel contends that it was only on cross-examination of the accused that such testimony was adduced. But in the direct examination of the accused he testified as to what took place between him and his wife back of the bar in the saloon after his wife and the little girl came downstairs. The state, on rebuttal, sought to prove by a physician that he had examined the wife of the accused, and what he had examined her for. On objection being made, the district attorney insisted that the testimony was proper as impeaching the accused in swearing “that he had not abused his wife,” and thereupon the objec
7. Error is assigned on the ground that the state failed to prove the venue. When asked by the court, the “defendant’s counsel refused to state in what respect proof is lacking.” He now insists that the only evidence upon that proposition found in the record is where the little girl said that she had been more than once at the house of the accused, and “that was here in Milwaukee on Brady street.” He then discusses at length that such proof was insufficient, citing numerous adjudications. Without determining the question, it is enough here to say that the accused himself testified that, when this charge upon which he was arrested was preferred against him, he “lived on Brady street,” and that that was “in the city of Milwaukee, county of Milwaukee, and state of Wisconsin.” There is certainly an opportunity for more care and accuracy on the part of counsel.
8. Error is assigned for refusing to instruct the jury as requested. The bill of exceptions contains eight instructions, numbered from 1 to 8 consecutively, so requested by counsel for the accused, but contains no specific exception to the court’s refusal to give any of such instructions. The only exception to such refusal is after the eighth, and is as follows: “All of which were refused, except as given in general charge, to which refusal proper exceptions were duly taken.” Such exceptions are altogether too general to answer the purpose of an exception to the refusal to give any one of such instructions, as often declared by this court. Especially is this so where, as here, five, of such requests to instruct are confessedly without merit, since no error is assigned for the refusal to give them. So far as the motion for a new trial was based upon such refusal to instruct, it was equally general and inefficient, and was as follows: “Because the court erred in refusing to instruct the jury as requested by the said defendant
9. Three errors are assigned in charging the jury. The charge consists of sis and one-half typewritten pages, and there is no specific exception to any portion of it. The only exception is at the end of the charge, as follows: “To all of which exceptions were taken.” The inefficiency of this as an exception has been declared so often as not to require reiteration. Green v. Hanson, 89 Wis. 597, 62 N. W. 408. In answer to this suggestion on the part of the state counsel for the accused says that he “filed proper exceptions, within the proper time, to such instructions, . . . which are a part of the record in this case.” But such exceptions were no part of the record, because they were never incorporated into the bill of exceptions. The rule of this court declares what the record should contain, and that it should "nob be accompanied by any affidavit, account, document, writing, or other matter not constituting a part of the record proper or made such by the bill of exceptionsRule YIT¿. The exceptions so filed must be regarded as a mere fugitive paper, which this court has no right to consider. Another answer of counsel to such suggestion of the state is that “such exceptions were incorporated in defendant’s written motion for a new trial, and specifically made a part of the bill of exceptions, and specifically set forth and assigned as reasons for a new trial in separate paragraphs.” The motion for a new trial was based upon thirteen different grounds, therein stated. The general character of the two relating to the refusal to instruct the jury as requested has already been mentioned and need not be here repeated.' Only two of the three portions of the charge assigned as error are mentioned in such motion, and they differ materially from the two as given in the assignment of errors;
“Together with the other testimony in this ease, the defendant has offered testimony, and it has been received, concerning and touching his reputation or character as a respectable man in the community in which he lives. You have heard that testimony. It has been given in evidence with the witnesses before you, and I may say to you that evidence of good ■character is always receivable in a court of law, where a person is charged with the commission of a crime, and sometimes it proves a very important part of the testimony, as, for instance, in a case that depends entirely upon circumstantial •evidence, or where the testimony as to the commission of the crime or offense is very contradictory. In such cases the testimony might be very important. Sometimes in such a case the testimony of good character would turn the scale in favor of the defendant. But, in a case where the testimony is direct and positive as to the commission of the offense, it is not of so much weight — not of so much value. Still it is to be •considered by the jury, and to be given by them all the weight they believe it entitled to receive. It should be considered in ■connection with all of the other testimony and circumstances surrounding the alleged commission of the offense. I might ■say to you, however, that the office of good character is not to ■create doubts' of guilt. It is simply to assist the jury in solving doubts.”
Much of this portion of the charge is favorable to the accused, and furnished no ground for objection or exception. The last sentence of this portion of the charge was erroneous, ■within the ruling of this court in Schutz v. State, 125 Wis. 452, 104 N. W. 90, 92. But there was no specific objection •or exception^) such portion of the charge, nor to the marred phraseology of it as contained in the motion for a new trial. 'The other portion of the charge, referred to in the motion for
“Under the laws of this state the defendant is a competent witness in his own behalf. Notwithstanding that fact, however, the jury have a right to consider his situation, his interest in the result of the trial, the temptation that exists under the circumstances to testify falsely, and everything appearing-in the case bearing on his credibility; and it is your duty to give his testimony just such weight as you believe it entitled to-receive. It should he considered in connection with all of the-other evidence in the case, and the same tests that are applied to his testimony for the purpose of determining its credibility should be applied to the testimony of each and every other witness
Certainly this charge, as so given, is not open to the criticism of discriminating against a single witness, as claimed by counsel in Schutz v. State, 125 Wis. 452, 104 N. W. 90, 93, and cases there cited. The portion of the charge as so given was proper.
A motion for a new trial during the term, based upon the minutes of the court, does not obviate the necessity of specific objections or exceptions to the portions of the charge sought to be reviewed. It was held by this court many years age that:
“A general motion, on the minutes, for a new trial, where the record does not show whether it was made on exceptions, or for insufficient evidence, or for excessive damages, will not enable this court to review the charge. If such a motion (which must he made during the trial term) should specify that some particular portion of the charge -was erroneous, it might, perhaps, be treated as a valid exception to that portion, and enable this court to review it on appeal.” Nisbet v. Gill, 38 Wis. 657.
In Wells v. Perkins, 43 Wis. 160, 163-165, the motion for a new trial specifically pointed out the portion of the charge to which exception was taken; and the court held that that
It follows from these authorities that, in order for this-court to review a particular portion of a charge to the- jury, there must be a specific exception thereto, or, in the absence of' such specific exception, the motion for a new trial must specifically point out the objectionable portion of such charge as-a ground upon which the new trial was sought. We find no reversible error in the record.
By the Court. — The judgment of the municipal court of Milwaukee county is affirmed.