#### Hardy, Plaintiff in error, vs. The State, Defendant in error.

*April 27*

June 4, *1912.*

*Rape: Identity of offender: Evidence: Sufficiency: Competency: Statements in presence of defendant: Instructions to jury: Arguments of counsel.*

1. In a prosecution for the rape of a girl eight years old, her testimony, corroborated by that of two children with whom she had been playing and by other evidence, together with proof of a former conviction of defendant for a similar offense, and his conflicting and contradictory testimony in an attempt to establish an *alibi, held*sufficient to establish the fact that he was the person who committed the crime.

2. Upon a criminal trial, evidence that the accused, when charged with the offense, or when declarations touching his guilt were made in his presence and hearing, remained silent when it would have been proper for him to speak, is competent.

3. There was no error in such a case in charging the jury to the effect that testimony as to declarations made in the presence of defendant is only to be considered on the question of identity and for no other purpose, and that statements made in his presence and not denied, disavowed, or explained by him when he had an opportunity to do so may be considered by the jury; nor in refusing to give a requested instruction that testimony “as to what was stated in the presence of the defendant and any officers accompanying him concerning the identity of the person who committed the crime charged . . . must be received and considered by you only concerning its effect upon the demeanor of the defendant at the time he was confronted with such identification.”

4. It was not prejudicial error, in such case, to permit counsel for the state to discuss to the jury a case previously tried in the same court, the jury being instructed that such discussion had no bearing on the question of the guilt or innocence of the defendant, but that it was not improper to use it by way of explanation and illustration, and that it could only be so considered by them.

Ebeoe to review a judgment of the municipal court of Milwaukee county: A. 0. Beazee, Judge.

*Affirmed.*

*177*Lyman G. Wheeler,*for the plaintiff in error.

For the defendant in error there was a brief by the *Attorney General, Bussell Jackson,*deputy attorney general, *Winfred 0. Zabel,*district attorney, and *Andrew Gilbertson,*assistant district attorney, and oral argument by *Mr. Jackson*and *Mr. Gilbertson.*

Kebwiit, J.

The plaintiff in error, hereinafter called defendant, was convicted of the crime of rape upon Gertrude Boerner, a girl between seven and eight years of age, and sentenced to imprisonment in the state prison at Waupun for the term of twenty-five years. The defendant brings the case here and asks reversal on the ground of alleged error.

1. It is first contended that the evidence is not sufficient to support the conviction. It is not disputed that the crime was committed, but it is argued that the evidence is not sufficient to establish that defendant' is the person who committed it, therefore the court erred in denying a new trial and in refusing to discharge the defendant. As said by counsel for defendant, “The whole issue in this case is whether *George Hardy*committed the crime, or some other person unknown.”

Under this head counsel for defendant argues that the great weight and preponderance of the evidence in the case is with the defendant and not with the state; that the evidence relating to identity of the person who committed the crime is vague and uncertain and rests upon the evidence of three little children; that the identity of defendant as the person who committed the crime was not established; and that the evidence on the part of defendant established an *alibi.*

The crime was committed between 8 and 8:30 o’clock in the evening of May 17, 1909, in a shed or barn a short distance from the place where the said Gertrude Boerner, hereinafter called Gertrude, was playing with other children *178shortly before the offense was committed. She testified that she was playing on the steps of the Mischke residence, next door to her parents’ residence, on the evening in question, in company with Hilda Mischke, Wallie Mischke, and her brothers Rollie and Gilbert; that defendant took her back of the Mischke and Boerner residences, through an alley, to a blacksmith shop; that he pulled her along and choked her when at or near the blacksmith shop, and then took her into a barn across from the blacksmith shop; that there were shavings in the barn upon which he threw her and committed the crime. She identified the defendant' as the person who committed the offense and gave quite an accurate description of the clothes which he wore; that after defendant had committed the offense he left her in the barn and went away and shortly afterwards she went home and an examination disclosed that the offense had been committed; that defendant told her before he left that she must not tell any one about it; that he lived across the street from the Boerner residence, and that she saw him twice before the offense was committed. True, she made many contradictory statements in her evidence, which are urged against its credibility, but in view of her age, inexperience, and unfamiliarity with court proceedings this is not surprising. In fact, her testimony upon the salient points in the case is quite convincing, and its credibility was clearly for the jury. Moreover, the testimony of Gertrude respecting the defendant taking her through the alley towards the barn and his presence where the children were playing just before taking her is strongly corroborated by the Mischke children, Wallie and Hilda. They both identified defendant as the person who took Gertrude through the alley toward the barn and told the other children to go back, and after they had gone back proceeded with Gertrude toward the barn where the offense was committed.

The defendant denies commission of the crime or that he *179took Gertrude to the barn, and attempts to prove that' he was elsewhere between 8 and 8:30 on the evening in question. His testimony, however, is conflicting and contradictory and is out of harmony with the evidence of other witnesses as to his whereabouts on the evening in question. The credibility of his evidence was for the jury. It would serve no useful purpose to detail the evidence of the witnesses on this subject. There is also other evidence than that of Gertrude and Hilda and Wallie Mischke corroborating the state’s case, besides proof of conviction of plaintiff on a former occasion for assault on a girl seventeen or eighteen years of age. It is sufficient to say that after a careful examination of the record we are convinced that the evidence is ample to support the verdict.

2. Error is assigned upon the admission of evidence of Mrs. Boerner as to what her little boys said respecting identity of defendant when defendant was brought into their presence. The twin Boerner children, Roland and Gilbert, about six years old, were produced in court. Roland was examined by the court with regard to his qualifications to testify, and the court reserved its rulings on qualifications and allowed the boy to stand aside and he was not called again. Gilbert was also examined as to qualifications and ruling reserved. He also was told to stand aside. So neither of the Boerner twins testified upon the trial below. The mother, however, was permitted to testify concerning the officers bringing the defendant before these children on May 18th after commission of the crime. She testified, under objection, that the defendant was brought into tire store in presence of one of the twins and that she heard the boy say “That is he.” Motion to strike out this statement was denied, and such denial and the admission of the evidence are complained of as prejudicial error. Gertrude’s father also testified, under objection, that one of the twins, in answer to a.policeman, stated in the presence of defendant that defendant was *180the one who showed him the little cats. There is evidence that before defendant took Gertrude back through the alley he said to the children that he wanted to show them some little cats..

Complaint is made by counsel for defendant that no opportunity was offered to cross-examine the twins when they were examined as to qualifications by the court. Rut none was asked by counsel when they were on the stand, nor was any request made to recall them for cross-examination. The chief objection, however, under this head is that it was error prejudicial to defendant to permit the statements of what the twins said in his presence respecting identity to be put in evidence; that the evidence was hearsay and incompetent. The evidence tends to show that defendant made no denial when he was confronted by the twins and other children and identified as being the person who led Gertrude away. The defendant when on the stand was asked what he said when the children identified him and his reply was that he said nothing. There is also evidence of other witnesses that when defendant was in the presence of the children who accused him he said nothing, but looked down. The evidence as to how defendant acted when accused by the children would justify the jury in believing that such acts indicated a consciousness of guilt. The statements of the children referred to were made before defendant had been arrested. An investigation of the matter was being made and defendant knew it when the charges of his identity by the children were made. He was under no restraint, and no cogent reason appears why he should not have denied the charges when made, and the fact that he did not do so was proper for the consideration of the jury. We think the evidence was admissible. Upon a criminal trial, evidence that the accused, when charged with the offense, or when declarations touching his guilt were made in his presence and hearing, remained silent when it would have been proper for him to have spoken, *181is competent. And it Ras been beld that it is no objection to tbe admission of tbe evidence that tbe accused was, at tbe time, under arrest. *Kelley v. People,*55 N. Y. 565; *People v. Wennerholm,*166 N. Y. 567, 60 N. E. 259; 2 Wigmore, Ev. § 1072; *Donnelly v. State,*26 N. J. Law, 463; Burrill, Circumstantial Ev. sec. XXIV, pp. 482, 483; *Hochrieter v.*People, 2 N. Y. Ct. of App. Dec. 363; *Rex v. Bartlett,*7 C. & P. 832; *Johnson v. State,*17 Ala. 618; *People v. McCrea,*32 Cal. 98; *Rex v. Smithies,*5 C. & P. 332; *Spencer v. State,*20 Ala. 24.

3. Tbe following part of tbe charge is complained of:

> “Tbe testimony of any witness in tbis case as to tbe declarations of any witness made in tbe presence of tbe defendant is only to be considered on tbe question of identity and for no other purpose. Statements made in tbe presence of tbe defendant and not denied, disavowed, or explained by bim may be considered by tbe jury, and if tbe defendant bad an opportunity to deny, disavow, or explain sucb statement at tbe time.”

Each sentence is separately excepted to.

Tbe question of identity, whether tbe defendant was tbe person wbo led Gertrude through tbe alley, was tbe controlling question in tbe case, and of course witbin tbe knowledge of defendant. Under tbe authorities heretofore cited, declarations made in tbe presence and bearing of tbe defendant charging bim and not denied by bim were admissible against bim. Tbe court did not tell tbe jury that tbe statements of tbe children amounted to evidence of guilt, or evidence that defendant was tbe person wbo took Gertrude through tbe alley, but only that sucb evidence might be considered on tbe question of identity when made in tbe presence of tbe defendant and not denied, disavowed, or explained by bim when be bad an opportunity to do so. Tbe instruction as far as it went was proper. If more specific instruction were required it should have been requested. But counsel for defendant com*182plains because the court' refused to give tbe following instruction:

> “You are in structed that the testimony of any witness upon the trial of this action, as to what was stated in the presence of the defendant and any officers accompanying him concerning the identity of the person who committed the crime charged in the complaint, must be received and considered by you only concerning its effect upon the demeanor of the defendant at the time he was confronted with such identification.”

We think there was no error in refusing to give this instruction. The instruction would not have further enlightened the jury. They were charged that statements made in the presence of the accused under certain circumstances relating to demeanor might be considered by them on the question of identity. The instruction requested, if given, would be more likely to mislead than to enlighten the jury. By it no guide was given to the jury by which they could properly weigh the demeanor of the defendant. They were not told what effect should be given silence, acts, or declarations of defendant when confronted with the charges. 2 Wigmore, Ev. § 1012.

4. Error is assigned because the court permitted counsel for the state to discuss to the jury a case which had been tried in the municipal court of Milwaukee county some time prior to the trial of the instant case. On this matter the court below instructed the jury that the discussion had no bearing on the question of the guilt or innocence of the defendant', but that it was not improper to use it on the question of explanation and by way of illustration, and that it could only be so considered by them. We find no prejudicial error under this head.

After a careful examination of the record we are of the opinion that the defendant had a fair trial, and that no prejudicial error was committed.

*By the Court.*— The judgment of the court below is affirmed.