Kidd v. Fleek

ByaN, 0. J. There was evidence to support the verdict, and this court cannot hold that the court below abused its discretion in refusing a new trial. Janssen v. Jammers, 29 Wis., 88; Paine v. Roberts, id., 642. No question was made in the court below upon the degree of evidence necessary to support the respondent’s justification. The question cannot, therefore, be properly raised in this court. Butler v. Carns, 37 Wis., 61. But it was not necessary to satisfy the jury beyond a reasonable doubt. Washington U. I. Co. v. Wilson, 7 Wis., 169; Wright v. Hardy, 22 Wis., 348; Blaeser v. Ins. Co., 37 Wis., 31. A witness had testified to a declaration of the respondent charging the appellant with theft. He was then asked whether he understood the respondent to make the charge. The question was quite immaterial, and indeed improper, because it called for construction by the witness of language needing none, if the witness were competent to give it. [445] Another witness had testified to a declaration of the respondent charging the appellant with the theft, and stating the circumstances. lie was then asked if he knew who was charged. This question was also immaterial, and perhaps improper, for similar reasons. Again, a witness had given evidence tending to show that he witnessed the theft from the respondent’s cornfield. lie visited the locus in quo some time after. He was asked what he saw. lie answered that corn had been husked there. This was of little weight, hut was competent. The respondent had charged the appellant with stealing corn. The appellant testified that her family had corn of their own. She was asked and stated how much. The answer to the latter question was stricken out on motion of the respondent. It is difficult to understand why the appellant should desire to make the statement, or the respondent to exclude it. It was quite irrelevant. It might possibly have some bearing on the question of the appellant’s guilt of the crime imputed to her, that she was under no temptation to commit it; but the degree in which she was removed from temptation was certainly immaterial. The learned judge of the court below told the jury that it was not pretended that the corn could have been stolen, except by the appellant’s entry into the respondent’s field. It is argued here that this tends to impute the crime to the appellant. But, read in the light of the whole charge, it manifestly signifies, and the jury must have understood it to signify, that the appellant could not have stolen the corn except by entry into the cornfield. Scheike v. Johnson, 39 Wis., 384; Dorsey v. Construction Co., 42 Wis., 583. These are the only errors assigned. Little stress is laid upon any of them here, and they do not appear to warrant an appeal to this overburdened court. By the Court. — The judgment of the court below is affirmed.