#### The State vs. Knight.

*June 5*

June *18, 1903.*

*Criminal law and practice: Municipal courts: Certifying questions to supreme court: Jurisdiction: Witnesses: Impeachment: Reputation: Remoteness.*

1. Under see. 2, ch. 49, Laws of 1901 (providing, as to the municipal court of Dane county, that the general provisions of law which may at any time he in force relative to circuit courts, and actions and proceedings therein, shall relate also to said municipal court, unless inapplicable), it is within the authority of the municipal court of Dane county to certify questions of law to the supreme court, under sec. 4721, Stats. 1898 (providing that if upon the trial of any person who shall be convicted in a circuit court any question of law shall arise which, in the opinion of the judge, shall be so important or so doubtful as to require the decision of the supreme court, he shall, if the defendant desire it or consent thereto, report the case so far as may be necessary to present the question of law arising thereon), and that the supreme court has jurisdiction under such statutes to act upon such report.

2. Evidence as to the reputation of a witness for truth and veracity in the vicinity of his prior residence, twenty-two months before the trial, is ndt inadmissible merely on the ground that it is too remote.

3. Such evidence is not inadmissible merely because another and subsequent domicile has been shown, and that the witness had established a reputation therein.

4. The question whether or not specific error in striking out evidence was prejudicial to the accused is not a proper one for certification or answer under sec. 4721, Stats. 1898.

Repoeted from the municipal court of Dane county: Anthony Donovan, Judge.

*First question answered in the affirmative; second question left unansiuered.*

Defendant was tried in January, 1903, in the municipal court of Dane county, on charge of adultery. The prosecuting witness having testified to the act, and the defendant Raving denied it, the state, in rebuttal, introduced impeaching evidence of the bad reputation of defendant for truth *474and veracity at tbe village of Oregon, where be resided front about March, 1901, to about June, 1902. Defendant then offered, and the court received, evidence of a witness that he was familiar with defendant’s reputation for truth and veracity at the city of Stoughton, where he had resided all his' life, up to March, 1901, and that it was good. Thereupon the state moved to strike out that testimony, and the court granted the motion, for the reason that the proper foundation-was not laid, and because said witness had stated that he did not know the reputation of the defendant at Oregon, where-he had established his last reputation; that'ithe evidence must be confined to reputation of the defendant in the vicinity where he had a last fixed domicile, and had acquired a reputation. Other witnesses, prepared to testify to the same effect, were therefore not sworn. After a verdict of guilty,, the municipal judge certified to this court the questions: “(1) Did the court err in striking from the record the testimony of the witness from Stoughton? (2) If so, is such error prejudicial to the defendant, *Thomas 8. Knight V’*

For the plaintiff there was a brief by the *Attorney General*and *W. D. Corrigan,*second assistant attorney general, and *F. L.*Gilbert, district attorney, ánd oral argument by *Mr. Corrigan.*

For the defendant there was a brief by *John A. Aylward*and *J. M. Clancey,*and oral argument by *Mr. Aylward.*

Dodge, J.

The first subject debated is whether this court is authorized by the statutes to answer questions of law in criminal cases upon a report from the judge of the municipal court of Dane county, as it is upon the report of a circuit judge by express provision of sec. 4721, Stats. 1898. That section provides:

> “If upon the trial of any person who shall be convicted in-said circuit court any question of law shall arise which, in the opinion of the judge, shall be so important or so doubtful *475as to require tbe decision, of tbe supreme court, be shall, if tbe defendant desire it or consent thereto, report tbe ease so far as may be necessary to present tbe question of law arising therein.”

This statute, if applicable to the municipal court of Dane county, or to cases pending therein, is rendered so by sec. 2, cb. 49, Laws of 1901, which provides:

> “The general provisions of law which may at any time be in force relative to circuit courts, and actions and proceedings therein, shall relate also to said municipal court, unless inapplicable.”

Under an entirely analogous statute relating to the municipal court of Milwaukee, it was decided in *State v. Allison,*47 Wis. 548, 2 N. W. 1141, that the municipal judge was not authorized to report cases falling within the jurisdiction which he held concurrently with justices of the peace; and as late as *Wendel v. State,*62 Wis. 302, 22 N. W. 435, it was again declared that the question whether such reports might be made and received, in cases within the jurisdiction held concurrently with circuit courts, was open and undecided. As early as *State v. Witham,*70 Wis. 473, 35 N. W. 934, however, this court, without question or discussion, received and acted upon such a report from the municipal court of Rock county, and thence onward many cases are fo'und. of similar action upon reports from various inferior courts having no authority except statutes similar in character to that governing the municipal court of Dane county. Some of those cases are the following: *State v. Witham,*70 Wis. 473, 35 N. W. 934; *State v. Whitton,*72 Wis. 18, 38 N. W. 331; *State v. Cornhauser,*74 Wis. 42, 41 N. W. 959; *State v. Whitmore,*75 Wis. 332, 43 N. W. 1133; *State v. S. A. L.*77 Wis. 467, 46 N. W. 498; *State v. Goodrich,*84 Wis. 359, 54 N. W. 577; *State v. Eaton,*85 Wis. 587, 55 N. W. 890; *State v. Wendler,*94 Wis. 369, 68 N. W. 759; *State v. Sawell,*107 Wis. 300, 83 N. W. 296. It was not until substan*476tially all of these cases had been decided that ch. 49, Laws of 1901, was enacted. We cannot doubt, therefore, that this persistent and long-continned practical construction by the profession and by the courts of statutes practically identical in phraseology must be considered as adopted by the legislature in re-enacting in the same words with reference to this particular municipal court, whatever might have been our view, upon deliberate discussion and consideration of such statute originally. We conclude that it was within the authority of the municipal court to report this case in compliance with sec. 4721, Stats. 1898, and that we have jurisdiction under that statute to act upon such report.

We therefore proceed to consider the first question certified' — whether “the court erred in striking from the record the testimony of the witness from Stoughton,” which related to defendant’s reputation at that place for truth and veracity. Doubtless the decision of a trial court as to admissibility of tin's and many other classes of evidence, which depends on the prior establishment of other facts, may involve much of judicial discretion, to which all due regard should be given by a reviewing court when it appears to have been exercised. That consideration can have but little force in the present instance, however, for the rulings of the trial court make obvious that he deemed his discretion as to the remoteness or proximity of the proposed evidence controlled by a strict rule of law, and excluded the evidence, not because the defendant’s reputation existing at Stoughton two years before the trial was, in his opinion, too remote to have any bearing upon that defendant’s character for truth and veracity, but because a rule of law rendered it inadmissible if a later residence and reputation had been acquired elsewhere. Hence the trial court erred, if no such rule of law exists. To the question of its existence, we therefore address ourselves.

Of course, the real question of interest to the jury is whether a witness’ character with reference to truthfulness *477is good or bad at the time of trial, so that they may judge as to the credit to be given his' statements on the-witness stand. It is now quite universally recognized that the general reputation of one in the community of his residence is evidente of his character. The reputation receivable in evidence must, of course, be one existing and established before the trial, but how much lapse of time will serve to deprive.it of all evi-dentiary force is quite uncertain, under the authorities. Their tendency is to allow much remoteness in time, on the' theory that personal character is a persistent quality, ordinarily changing hardly at all, and never suddenly. In 1 Greenl. Ev. (16th ed.) § 461d, the true rule is said to be “that character [reputation] at any preceding time is admissible, provided it is not too remote in time to have real probative value.” Decided cases have declared its admissibility after the lapse of many years — up to ten or even more. *Sleeper v. Van Middlesworth,*4 Denio, 431; *Rathbun v. Ross,*46 Barb. 127; *People v. Abbott,*19 Wend. 192, 201; *Snow v. Grace,*29 Ark. 131; *Watkins v. State,*82 Ga. 231, 8 S. E. 875; *Holmes v. Stateler,*17 Ill. 453; *Buse v. Page,*32 Minn. 111, 19 N. W. 736, 20 N. W. 95; *Morss v. Palmer,*15 Pa. St. 51; *Sage v. State,*127 Ind. 15, 27, 26 N. E. 667. Erom these and other authorities, we cannot doubt that a general reputation established and existing twenty-two months before is not so remote as to be inadmissible on that ground alone. 'Nor, indeed, have we any reason to suppose that the ( trial court would have so held. He merely ruled that the intervention of the subsequent residence, and establishment of a provable reputation there, render the former reputation inadmissible, although not so remote but that it would otherwise have probative force. This could be so only on the ground that the former general reputation is no longer any evidence of the real character of the man. Eor such view we find no support in any of the cases cited, but, on the other hand, we do find much authority to the contrary. 3 Jones, *478Ev. § 862; *Hamilton v. People,*29 Mich. 173, 187; *Coates v.*Sulau, 46 Kan. 341, 343, 26 Pac. 720; *Sleeper v. Van*Middlesworth, *supra; People v.*Abbott, *supra; Rathbun v.*Ross, *supra; Watkins v.*State, *supra; Stratton v.*State, 45 Ind. 468; *Memphis & O. R. P. Co. v.*McCool, 83 Ind. 392; *Norwood & B. Co. v.*Andrews, 71 Miss. 641, 16 South. 262; *State v. Lanier,*79 N. C. 622; *Morss v. Palmer, supra.*In substantially all of these cases the witness had maintained a later residence for as long or longer than had the defendant in Oregon. In many of them evidence had been given of an existing reputation at such later place of residence. In all of them it was held that the general reputation existent in the community of his earlier residence was relevant and admissible to prove the actual -character of the witness at the time of his giving testimony. The reasoning in support of this view is unanswerable. If the date of the earlier residence and surrounding reputation is */*recent enough that, according to ordinary human experience, the character which was then a part of the man himself is not likely to have changed, proof of that character at that date is material, and the general reputation then existing tends to prove what that character was. It is, of course, true that reputation does not always coincide with real character. Fortuitous circumstances, some .unfortunate or suspicious event, persistency in scandal-mongering by some enemy, may give a bad reputation to a good man. This peril is, however, greatest in the neighborhood of least residence and least intimacy of contact and variety of stress in which the man’s qualities have been exhibited. It would be strange doctrine, indeed, if a blameless life through boyhood and early manhood could not be considered as against an unfavorable reputation resulting from a few months’ residence among strangers, where the witness’ true character may as yet not be understood. We are convinced that no such rule as that applied by the trial court ought to exist; that it would obstruct discovery of the *479truth far oftener than promote it. This conception of what the law ought to be having the support of all the authorities we have been able to find, we cannot do otherwise than hold a contrary rule erroneous, and advise the trial court that error was committed in striking out and excluding the evidence as :to defendant’s general reputation for truth and veracity existing at Stoughton at the time of his residence there.

The second question is not a proper one for certification or answer, under sec. 4721, Stats. 1898. It cannot be answered with certainty without examination of the entire record. *State v.*Jenkins, 60 Wis. 599, 19 N. W. 406; *State v.*Gross, 62 Wis. 41, 21 N. W. 802; *State v. Cornhauser,*74 Wis. 42, 41 N. W. 959. True, the ruling of the court, being specific error, is presumptively prejudicial. Its certification emphasizes that presumption. Nevertheless there is possibility that it might have been cured in the course of the trial — as, for instance, by subsequent admission of the evidence first ruled out. Whether so cured can only be learned from a complete record, including a bill of exceptions. This we have not before us, and could not assume to examine if we had, under the authorities above cited.

*By the Court-.*— The first question reported is answered in the affirmative, and the second is left unanswered.