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

*May 26*

June *13, 1916.*

*Criminal law: Sodomy: Evidence: Competency: Other offenses: Reputation: Corroboration: Instructions to jury:*Alibi: *Unfair trial: Reversal of conviction.*

1. Upon a trial for sodomy, it was error to permit tbe defendant to be asked on cross-examination whether lie did not have improper relations with a certain person, naming him, other than the complaining witness.

*6102. The state in making its case proved that the alleged offense was committed on March 13th and upon no other day. The main defense was an *alibi,*and there was strong evidence thereof. On rebuttal the state undertook to show that the complaining witness might have been mistaken as to the day and that the crime might have been committed on some other day. The court charged the jury that the vital question for them to determine was whether defendant committed the crime upon any day in March. *Held,*that even if there was no affirmative error in such charge (a point not decided) the jury should have been further instructed that if the testimony of the complaining witness was correct as to the date and if the evidence of an *alibi*was sufficient to prove the defendant's absence from the city on that date, or raised a reasonable doubt as to his presence, he was entitled to be acquitted.

3. It was error in this case to refuse a requested instruction to the effect that the.jury should use great caution in weighing the testimony of the complaining witness, that it is ordinarily unsafe to convict upon the uncorroborated testimony of an accomplice, and that upon the actual commission of the crime charged the complaining witness was not corroborated by any other witness.

4. Testimony that the reputation of the defendant was bad was incompetent, where the witness based his opinion of such reputation upon stories and talk which he had heard after the prosecution had been commenced.

*5.*Where, upon the whole record, the supreme court is convinced that the defendant did not have a fair trial, and is unable to say that justice has been done, a new trial should be ordered.

Error to* review a judgment of tbe circuit court for Rich-land county: G-eorgb OlementsoN, Circuit Judge.

*Reversed.*

*L. H. Bancroft,*for the plaintiff in error.

Eór the defendant in error there was a brief by the *Attorney General*and *J. F. Baker*and *J. E. Messerschmidij*assistant attorneys general, and oral argument by *Mr. Messerschmidt.*

Kerwin, J.

The plaintiff in error, hereinafter called the defendant, was convicted of an offense specified in sec. 4591, Stats. The case is here for review on errors assigned.

*611
      1. Error is assigned in permitting tbe prosecuting attorney to cross-examine the defendant upon matters not relevant to the issue. The offense was alleged to have been committed at Richland Center, Richland county, Wisconsin, with the complaining witness on the 13th day of March, 1915. The prosecuting attorney was permitted under objection, on cross-examination of defendant, to examine him at great length as to alleged conversations and relations with persons other than the complaining witness with whom it was alleged in the indictment he committed the offense charged. In pursuance of this cross-examination defendant was ashed, among other things, whether he did not have improper relations with a certain person, naming him, other than the complaining witness. This- was improper.

It is further assigned that the court erred in its charge to the jury. The state in making its case proved that the alleged offense was committed March 13, 1915, and upon no other day. After the defendant had proved by very strong evidence that he was not in Richland Center on the 13th, hence could not have committed the crime on that day, the state undertook to prove on rebuttal that the complaining witness might have been mistaken as to the day and that the crime might have been committed on some other day. The court charged the jury that the vital question for them to determine was whether the defendant committed the crime upon any day in the month of March. This charge-is complained of. While we are of opinion that the charge was correct as an abstract rule of law, in the instant case we are not able to say that it did not prejudice the defendant.

The question whether the charge was misleading in view of the state of the evidence is not entirely clear. The evidence of the complaining witnéss is very positive that the offense was committed on the exact day named in the information. The defendant then introduced evidence tending to show that he was not in Richland Center at the time stated and the *612
      *alibi*was tbe main defense. If tbe complaining witness’s evidence was correct as to time of commission of tbe offense, then tbe question of particular date became more important than in tbe ordinary case, and if tbe evidence of the *alibi*were sufficient to prove tbe defendant’s absence from tbe city on that particular date or raised a reasonable doubt as to bis presence, tbe defendant was entitled to be acquitted.

Without bolding that there was affirmative error in giving tbe instruction referred to, we think, in view of tbe state of tbe evidence, that there should be, in case of another trial, some such additional instruction as is suggested above.

Tbe court charged tbe jury that it was for them to determine whether tbe evidence of tbe complaining witness was corroborated, and refused to give tbe instruction requested by counsel for defendant to tbe effect that in considering tbe testimony of tbe complaining witness tbe jury should use great caution in weighing bis testimony, and that it is ordinarily unsafe to convict upon tbe uncorroborated testimony of an accomplice, and upon tbe actual commission of tbe crime charged against tbe defendant tbe complaining witness is not corroborated by any other witness.

It was prejudicial error to refuse this instruction. There was no evidence corroborating that of tbe complaining witness upon tbe actual commission of tbe crime charged. While one accused of crime may be convicted upon tbe testimony of an accomplice alone, there is often great danger of injustice being done tbe accused in convicting upon such evidence, and tbe court may properly direct an acquittal where tbe ease of tbe state rests upon such evidence alone. *Porath v. State,*90 Wis. 527, 63 N. W. 1061; *Ingalls v. State,*48 Wis. 647, 4 N. W. 785; *Mack v. State,*48 Wis. 271, 286, 4 N. W. 449; *Murphy v. State,*124 Wis. 635, 102 N. W. 1087. In *Mercer v. Wright,*3 Wis. 645, it was held that tbe jury ought not to convict upon tbe uncorroborated evidence of an accomplice but that they may lawfully do so.

*613A doctor was also .permitted to testify that tbe reputation of defendant was bad, basing bis opinion of defendant’s reputation upon stories .and talk which he had heard after the prosecution of this case had been commenced. This evidence was incompetent and should have been excluded.

Several other errors are assigned and discussed by counsel for defendant, but since they are not likely to occur upon another trial we shall not consider them. Sufficient has already been said to show that prejudicial error was committed upon the trial.

Upon the whole record we are convinced that the defendant did not have a fair trial and we are unable to say that justice was done him. Under such circumstances the defendant should have a new. trial. *Prinslow v. State,*140 Wis. 131, 121 N. W. 637; *Lonergan v. State,*111 Wis. 453, 87 N. W. 455.

*By*the. *Court.*— The judgment and conviction are reversed, and the cause remanded for a new trial.