Smith v. Nippert

Cassoday, J. The complaint was held sufficient by this court on demurrer on a former appeal as charging the conspiracy mentioned in the foregoing statement. 76 Wis. 86. The plaintiff and the defendant Oeorge both appear to have been of about the same age and unmarried at the time of the offense charged. Error is assigned by reason of the admission of testimony on the part of the plaintiff tending to prove that while the plaintiff was alone at her brother’s house, January 11, 1888, the defendant George came there, threw her onto the bed, tore her clothing off, and attempted to have connection with her against her consent, and in so doing used violence; and that January 28, 1888, the plaintiff swore out a warrant against him therefor, but that no service thereof had been made by reason of his having left the state. The objects of conspiracy, though numerous and multiform, are classified by Mr. Greenleaf. 3 Greenl. Ev. § 90. Among the classes thus given is a conspiracy to injure a third person by charging him with any other act tending to disgrace and injure him or- his reputation, trade, or profession, or an act tending to obstruct, pervert, or defeat the course of public justice. Such is the nature of the objects alleged in the complaint. From the very nature of the case the evidence in proof of a conspiracy is generally circumstantial. Id. § 93. But the evidence must be confined to the particular allegations contained in the indictment. Thus, if the indictment charges a particular intent, it must be proved. “ But if the alleged intent be to accomplish several illegal objects, it will not be necessary to prove all the particulars of the charge, but it will be sufficient if a conspiracy to effect any one of the illegal objects mentioned in the indictment be proved.” Id. § 96. The evidence thus admitted manifestly tended to prove one of the objects thus alleged. After all, the unlawful combination or agreement is the gist of the offense. Id. § 91. Thus it has recently been held in England that the prosecution could be [139] maintained even where the object of the conspiracy was an impossibility. Queen v. Whitchurch, 24 Q. B. Div. 420. Such being the law applicable, we perceive no error in excluding testimony on the part of the defendant Nippert as to what she heard other people remark upon the appearance or sanity of the plaintiff in the fall of 188Y. Such idle gossip, at so remote a period, did not tend to disprove the alleged conspiracy, nor any of the alleged objects of conspiracy, nor to justify the action taken by the witness and Mrs. Sienta, July 7, 1888. Besides, Mrs. Nippert frankly admits that she instituted the application for the inquisition without making any investigation as to th'e plaintiff’s sanity or insanity. It is claimed that the verdict is not sustained by the evidence. But, in view of the relationship of the defendants to each other, their communications with George, who was absent, and with each other, the offense charged against George, and the steps taken to have the plaintiff committed to the asylum, and all the facts and circumstances in the record, we are constrained to hold that the verdict is sustained by the evidence. There is nothing in the record that would justify us in holding that there was-an abuse of discretion in refusing to set aside the verdict on the ground that the damages were excessive. Exception is taken to the remarks of counsel in opening the case, and also in arguing the case to the jury. The mere fact that the counsel stated in opening that the case had been to the supreme court, is no ground for reversal. No judgment is to be reversed by reason of any error in the proceedings which does not affect the substantial rights of the adverse party. Sec. 2829, R. S. The court, in effect, stopped the counsel, and excluded his attempt to give an historical account of similar cases. Exception is taken because counsel was allowed to comment upon the alleged assault upon the plaintiff by the defendant George, the at [140] tempt to arrest him, and his departure from the state. But the evidence in the record tends to prove that such were the facts; and we know of no rule which excludes counsel from commenting upon them. In arguing a case to the jury counsel necessarily have a broad latitude. The administration of justice requires it. The trial judge is necessarily familiar with all the facts and circumstances, as well as all shades, of the evidence. He must necessarily have a broad discretion in such matters. Error is not to be presumed in such case. If counsel abuse their privilege, or the trial court its discretion, and such abuse is made to appear affirmatively in the record, then an exception to the same will be sustained; otherwise it will be overruled. Such have been the repeated rulings of this court. Santry v. State, 67 Wis. 67; Baker v. State, 69 Wis. 41; Kircher v. Milwaukee M. M. Ins. Co. 74 Wis. 472; Lathers v. Wyman, 76 Wis. 624. By the Court.—The judgment of the circuit court is affirmed.