#### Lam Yee, Plaintiff in error, vs. The State, Defendant in error.

*May 27*

June *20, 1907.*

*‘Criminal law: When verdict disturbed: Rape: Evidence: Arguments of counsel: Failure of defendant to call witnesses: Exceptions.*

1. In a criminal case if there is any credible evidence which in any reasonable view supports the verdict it will not be disturbed on appeal.

2. The decision of the trial court that there is credible evidence in support of the verdict will not be overruled unless it is clearly wrong, reasonable doubts being resolved in favor of the decision.

*5283. A conviction of rape is *held*in this case to he sustained by tbe testimony of tbe prosecuting witness, corroborated by both direct and circumstantial evidence.

*4.*A ruling by the trial court to tbe effect that it was legitimate for tbe district attorney to claim,'in argument to tbe jury, that if tbe testimony of tbe prosecuting witness was true and tbe testimony also true as to her being afflicted with a venereal disease soon'after tbe time at which she testified tbe defendant abused her, tbe jury might infer that defendant was afflicted with that disease at tbe time of such abuse, is *held*not to have been erroneous, in view of tbe evidence in tbe case.

5. It was not error to permit tbe district attorney to comment on tbe failure of defendant to call witnesses to prove that be was not afflicted with tbe disease mentioned at tbe time of tbe alleged assault

6. When defendant might readily have produced witnesses to disprove incriminating circumstances which tbe testimony of tbe prosecution, tends to prove, bis failure to do so may properly be commented upon in tbe argument to tbe jury.

7. Remarks made by tbe district attorney in argument to tbe court as to the competency of a witness cannot be held error where no exception thereto was taken at tbe trial and there was no request *to*instruct tbe jury on tbe subject, especially where tbe testimony was rejected and tbe court admonished tbe jury that what was said should have no effect upon their minds.

EeboR to review a judgment of tbe circuit court for She-boygan county: Michael KjrwaN, Circuit Judge.

*Affirmed.*

Tbe accused was charged with having on January 3, 1906,. committed the crime of rape upon the person of Minnie Schultz, a female under the age of fourteen years. He was in due form found guilty and sentenced to be punished by confinement in the state prison for ten years.

For the plaintiff in error there was a brief by *D. T. Phalen■*and *P. P. Gray,*and oral argument by *Mr. Phalen.*

For the defendant in error there was a brief by the *Attorney General*and *J. P. Messer schmidt,*state law examiner, and oral argument by *Mr. Messer schmidt.*

To the point that it is proper to permit comment on the failure of the accused to produce witnesses who are in possession of knowl*529edge that may show his guilt or innocence, they cited, besides cases cited in the opinion, *Hall v. State*(Tex.) 22 S. W. 141; *State v. Armstrong,*34 Tex. (Trim- 248, 30 S. W. 235; *Mayer v. State,*33 Tex. Grim. 33; *Jackson v. State,*31 Tex. Grim. 342; *Grumes v. State,*28 Tex. App. 516, 13 S. W. 868; *Richardson v. State,*44 Tex. Grim. 211, 70 S. W. 320; *Hawkins v. State*(Tex.) 71 S. W. 756.

Marshall, J.

The sufficiency of the evidence to warrant the verdict is challenged. The question thus- raised must be solved in the light of these familiar principlesIf there is any credible evidence which in any reasonable view; supports a verdict it cannot be disturbed on appeal. *Wis. F. L. Co. v. Bullard,*119 Wis. 320, 325, 96 N. W. 833; *Kennedy v. Plank,*120 Wis. 197, 97 N. W. 895; *Goldman v. Fidelity & D. Co.*125 Wis. 390, 104 N. W. 80. The decision of the trial court that there is such evidence cannot properly be overruled unless it is not only wrong but clearly so, reasonable doubts in respect thereto being resolved in favor of such decision. *Powell v. Ashland I. & S. Co.*98 Wis. 35, 73 N. W. 573; *Bohn v. Racine,*119 Wis. 341, 346, 96 N. W. 813. A firm adherence to these salutary rules is necessary to the end that judgments of trial courts may be as stable as^ due regard for the rights of the parties will permit.

It seems to be conceded, as the fact is, that if the evidence given by the witnesses produced on behalf of the state is true the accused did the deed with which he was charged. The details of the evidence will not be stated to any great extent.

The girl, Minnie Schultz, testified positively to all the essentials of the crime. A girl fourteen years of age testified to being present on the occasion of the outrage and corroborated the Schultz girl in all particulars except the final consummation of the offense, which in the nature of things she could not, and did not, observe. There was testimony that the Schultz girl accompanied by other girls had on several *530previous occasions visited tbe accused, at wbicb times be took some improper liberties witb them. There was testimony that a short time after the date of the alleged commission of the offense the Schultz girl was found to be afflicted with gonorrhea of a character indicating that it was communicated to her about such date. The accused testified that he did not have any such disease. This is as far as seems to be necessary to give the evidence. It has all been examined with care 'without our being able to reach the conclusion that the trial court was clearly wrong in holding that it made a case for the jury. The testimony of the girl unquestionably was to the effect that the accused abused her to the extent of committing the offense charged. She was corroborated, as has been indicated, both by direct and circumstantial evidence.

During the argument to the jury by the district attorney the court said in substance, in ruling on an objection, that it was.legitimate for such attorney to claim that if the evidence of the Schultz girl were true and the evidence also true in respect to her condition as to being afflicted with a venereal disease a short time after she testified to having been abused by the accused, the jury might infer therefrom that he was afflicted with such disease at the time of such abuse. It is claimed that the court erred in so ruling and in making the statement in the presence of the jury. It is considered that no error was committed in respect to that matter. The purpose of the evidence as to the girl’s condition was to show circumstantially that she had been abused by some male person. It was legitimate for such purpose. The evidence that the disease had run a course indicating that it was communicated to the girl about the time she claimed to have been assaulted, circumstantially tended to prove that she then contracted it. The effect of the court’s ruling was that the jury might consider her evidence and that in respect to her condition and when such condition probably originated as bearing *531on whether the accused produced it. Of course, the ultimate question was not whether he was diseased at the time of the alleged abuse of the girl, but whether her testimony in respect to such abuse and the extent of it was true. But it seems that the line of argument adopted by the district attorney and sustained by the trial court, as indicated, was allowable.

The district attorney commented to the jury on the failure of. the defendánt to call witnesses to. prove that he was not afflicted with gonorrhea at the time he was alleged to have assaulted the girl. It is insisted that the court erred in permitting that line of argument because of sec. 4071, Stats. (1898), to the effect that the refusal or omission of an accused person to testify shall not create any presumption against him. That has no reference to evidence of witnesses which the accused might readily but fails to produce. Where there is evidence tending to show that an accused person is guilty or to establish some circumstance bearing on the question and he may readily produce witnesses who can disprove the incriminating evidence, or give testimony tending to disprove it, if the same be untrue, and he fails to do so, such failure may be considered by the jury, and may properly be referred to by the prosecutor, as was done in this case. The authorities cited in the state’s brief are ample on that point. The following are a few of them: *State v.*Yordi, 30 Kan. 221, 2 Pac. 161; *McGuire v.*State, 3 Ohio Cir. Ct. 551, 561; *State v.*Mims, 36 Oreg. 315, 61 Pac. 888; *U. S. v.*Candler, 65 Fed. 308; *State v.*Kiger, 115 N. C. 746, 20 S. E. 456; *State v. Costner,*127 N. C. 566, 37 S. E. 326; *Comm. v.*Weber, 167 Pa. St. 153, 31 Atl. 481.

There is a further claim that certain remarks were improper, which were made by the district attorney in the course of an explanation as to how a witness became possessed of information respecting the condition of the accused shortly after the alleged commission of the offense, in order to enable *532tbe court to rule as to whether such witness was competent to testify. It is a sufficient answer "thereto that no exception was taken to the remarks on the trial, nor was there any request to instruct the jury on the subject. However, it should be noted in passing that the evidence was rejected and the court admonished the jury that they should not allow anything said respecting the matter to have any bearing upon their minds.

The foregoing covers all questions presented for consideration which require special attention. So far as we can discover, the record is free from error and the accused had a fair trial.

*By the Court.*— The judgment is affirmed.