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

*February 1*

April 22, 1902.

*Criminal law and, practice: Former jeopardy: Court and jury: 'Withdrawal of plea: Re-entry: Waiver of irregularities: Rape: Evidence of other offenses: Corroboration: Instructions to jury: Alibi: Judgment after death of trial judge.*

1. Where, upon a special plea (in this case a plea of former jeopardy, alleging that the jury at a former trial was discharged without defendant’s consent), the facts are all to be determined from the record, the court may take judicial notice of the record and decide the question without a finding of the jury.

2. From an information charging the commission of an offense on a certain day, the court refused to strike out words charging also its commission “on divers other days and times” between said day and a subsequent date; but defendant was tried only for the offense committed on the day first named, and the jury were restricted to that particular day in considering the case. *Held,*that there was no prejudicial error.

3. Where á plea of not' guilty is withdrawn by leave of court to enable defendant to enter a special plea, and the latter is overruled, the former plea may be re-entered by the court without a formal re-arraignment and plea by the defendant.

4. In such a case by failing to object to the re-entry by the court of the plea of not guilty, and by going to trial on the merits, defendant waives any irregularity in such re-entry of the plea.

5. Upon a prosecution for rape of a child under the age of consent, where the circumstances were such that had she been over the age of consent the offense would have been fornication, evidence of other violations of her by the defendant was admissible as tending to corroborate the testimony as to the particular act charged.

6. The uncorroborated testimony of the prosecutrix may be sufficient to sustain a conviction of rape, especially if she was under the age of consent.

7. The fact that the prosecutrix gave birth to a child at a time consistent with the accusation is corroboration of her testimony.

8. Although if a witness wilfully testifies falsely as to any material matter the jury may. properly reject all of his testimony which is not corroborated by some other credible evidence, yet *194on a trial for rape where the case rested mainly upon the testimony of the prosecutrix and that of the defendant, either of whom might have testified falsely as to some matters, though not wilfully so, it was prejudicial error to charge the jury that “it is a rule of common sense and sound logic that a party who testifies falsely upon any material question shall not he believed upon any other question, unless his evidence is fully and strongly corroborated.”

9.An instruction on a trial for rape that “the prosecutrix has been corroborated in many respects as to almost every fact that she testified to,” was an invasion of the province of the jury, and prejudicial error.

10. An instruction that the evidence produced by defendant to show an alibi did not necessarily establish beyond question the impossibility of his having committed the crime as charged, was erroneous, since it might have been so understood by the jury as to be prejudicial.

11. The judge of another circuit who was called in to preside at the trial having died, judgment was properly pronounced by the court with its own judge presiding.

ERROR to review a judgment of the circuit court for Clark county: I). H. JoimsoN, Judge.

*Reversed.*

Writ of error to review the conviction of plaintiff in error of the crime of rape on a female under the age of consent. The cause was twice tried. On the first trial the jury were unable to agree upon a verdict, and the judge, exercising his discretionary power in the premises, discharged them and ordered the accused held for another trial. The venue was thereafter duly changed to Clark county, and the cause was in due time brought on for trial before the circuit court *for*such county, Hon. D. H. JoiíNSON, judge of the second circuit, presiding, he having been duly called in to hold the court. By permission of the court plaintiff in error withdrew his plea of not guilty and filed a plea of former jeopardy in bar of further proceedings in the cause. The former jeopardy alleged was the trial theretofore had, where, as before stated, the jury were discharged because they were unable to agree upon a verdict. Plaintiff in error, in his special plea, insisted that a second trial could not be had because *195■be did not consent to the discharge of the jury npon the first trial. The judge, against objection by counsel for plaintiff ■in error, field that tfie special plea presented only a question ■of law, upon facts wfiiefi were matters of record in tfie cause and of wfiiefi fie would take judicial notice. It appearing by ■tfie recorded history of tfie former trial that the jury were discharged after considering tfie cause for nearly twenty-four hours and reporting to tfie court that they were unable to agree upon a verdict, the plea was overruled. Tfie plea of not guilty was then re-entered by tfie clerk by order of tfie ■court, without any new arraignment and without objection being made thereto on behalf of plaintiff in error. A motion was then made to discharge the accused upon tfie ground that •the court fiad no jurisdiction to try him, in order to save for future review all questions raised by tfie special plea.

Tfie cause then' proceeded to trial, no objection being made by or on behalf of plaintiff in error on tfie ground that issues were not properly formed for a trial of tfie cause upon tfie merits. Tfie charge contained in tfie information was in the following language:

“On the 4tfi day of August, A. D. 1898, and on divers «other days and times between said 4tfi day of August and tfie 1st day of September, A. D. 1898, *Dell Lanphere*did with force and arms in and upon Martha Einge, a female child under tfie age of fourteen years, to wit, of tfie age of thirteen years, feloniously make an assault and her, tfie said Martha Einge, then and there feloniously did unlawfully and carnally know and abuse, contrary to tfie statute,” etc.

Before any evidence was introduced a motion was made on behalf of plaintiff in error to strike from tfie information tfie words, “and on divers other days and times between the said 4tfi day of August and tfie 1st day of September, A. D. 1898.” Tfie motion was denied and due exception to tfie ruling was taken. Evidence was produced tending to prove •that tfie offense charged was committed as alleged. The direct evidence to that effect was given wholly by tfie girl. Tfie *196accused testified in bis own behalf, denying in detail ber evidence wbicb tended to incriminate bim. There was evidence independent of that given by ber, tending to show that the accused bad opportunity to commit tbe offense. There was also evidence showing that she was under fourteen years of age at tbe time tbe offense was alleged to have been committed ; that the accused was forty-eight years of age; that be was a traveling salesman, and was accustomed to' visit -the home of bis parents in tbe city of Eau Claire, where tbe girl, Martha Ringe, was employed as a domestic, covering a considerable period of time including tbe day upon wbicb tbe offense was alleged to have been committed; that on such visits be was accustomed to lodge at tbe bouse of bis parents, and that be and tbe girl at such times occupied adjoining rooms on tbe second floor, they being tbe sole occupants of that part of tbe bouse in tbe nighttime; that tbe girl made no disturbance to speak of at tbe time she claimed to have been violated; that she did not make any complaint of having been abused for a long time after tbe alleged commission of tbe offense, and did not suffer any inconvenience from tbe abuse complained of at tbe time thereof, nor thereafter till ber condition of pregnancy developed. She gave birth to a child May 26, 1899. She charged plaintiff in error with being tbe father of tbe child, testifying that be assaulted ber and did tbe acts alleged against bim in tbe information on tbe 4th day of August, 1898.

There was evidence by and on behalf of tbe accused tending to show that be was in the city of St. Paul, Minn., at the time tbe girl claimed tbe offense was committed. Proof was made in support of an alibi that the accused was required and accustomed to send daily reports of bis whereabouts and doings to bis employer, and reports purporting to have been written by bim and sent daily for a period including tbe 4th day of August, 1898, were introduced in evidence. There was also evidence in regard to tbe running of tbe railway *197trains between tbe city of Ean Claire and tbe city of St. Paul, that being introduced for tbe purpose of showing that it was possible that the accused might have been in St. Paul on tbe 4th day of August, 1898, and in the city of Eau Claire on the same day at the time or about the time on that day the girl testified that he committed the offense charged. She testified that the accused repeated the offense of the 4th day of August, on the 20th day of August thereafter, and again on the 27th day of that month. The court, in submitting the cause to the jury, required them to find the accused guilty of having committed the offense charged on the 4th day of August, 1898, or not guilty.

A verdict of guilty was rendered, and thereafter, and before judgment, the judge before whom the cause was tried died. Subsequently, and against objection by counsel for the accused, judgment was entered upon the conviction by the court, Hon. Jambs O’Neill, judge of the circuit court for Clark county, presiding.

For the plaintiff in error there was a brief by *V. W. J*ames, attorney, and *B. J. MacBride*of counsel, and oral argument by *Mr. James.*

For the defendant in error there was a brief by the *Attor-General,*and oral argument by *B. F.*Hamilton, second assistant attorney general, and by *Be Alton S. Thomas.*

The following opinion was filed February 18, 1902:

Maeshall, J.

The plea in bar did not tender any issue of fact as to which there could be, in the nature of things, any controversy to be established by evidence *dehors*the record. All matters of evidence of the facts alleged were a part of the recorded history of the trial. Therefore, the question of whether the special plliraiould be sustained or overruled was wholly one of law and was properly decided by the court. The jury had no duty to perform in respect thereto whatever. *Jackson v.*State, 91 Wis. 253, 64 N. W. 838; *Campbell v.*
      *198
      *State,*111 Wis. 152, 86 N. W. 855. We do not understand that counsel for plaintiff in error make any contention but that the defense of former jeopardy was properly overruled. The only complaint made is in regard to the manner in which the court discovered the matters of fact upon which the plea turned, that is, that it was done by mere judicial notice of the record, instead of by the finding of a jhry. It is by no means certain but that the plea was bad upon its face. It merely alleged that the jury was discharged without the consent of the accused. Looking at the entire plea, the reasonable inference was that the jury were discharged in the exercise of the discretionary power of the court because they were unable to agree. In either event, the question raised by the plea was not only properly tried, but it was properly decided. It is too well understood to be open to reasonable controversy that in the trial of a criminal cause the court may, in the exercise of its sound discretion, discharge a jury and hold the accused for another trial when, after taking a reasonable time to consider the case, they are unable to agree upon a verdict.

The failure of the court to strike from the information the useless words, “and on divers other days and times between the said 4th day of August and the 1st day of September, A. D. 1898,” was not prejudicial to the rights of the accused. The words were mere surplusage. The naming of a day certain was essential, and that was satisfied. The prosecution was not limited to proof of an offense of the character charged upon the particular day named. The state was permitted' to prove that the offense was committed on any day within the period covered by the statute of limitations, but it was necessary for the prosecution to elect what day would be relied on, at some point in the trial, or for the court to so fence in the charge, since there was evidence of several offenses of the character of the one alleged, and the offense was of such a character that there might have been several. The prosecuting attorney, by the manner in which the trial was conducted, con*199fined the inquiry, as to the offense for which the accused was on trial, to a day certain named in the information, and the jury were restricted to that particular day in considering the case, by the charge of the court. So there is no reasonable ground to claim that the failure of the court to strike the useless words from the information was prejudicial.

The conviction is challenged because, after the special plea was overruled, the accused was not required to plead anew to the information so as to raise an issue for trial on the merits. Such an issue is deemed essential. *Davis v. State,*38 Wis. 487. But one was formed in this case, and all mere formalities in regard thereto, if there were any, were overlooked and waived by the accused by not objecting to the re-entry _as ordered by the court and by going to trial upon the issue thus formed without objection. Undoubtedly the rule is as contended for by counsel for plaintiff in error, that where a plea of not guilty is withdrawn by permission of the court for the purpose of letting in some other plea, it should be re-entered upon such other plea being overruled, before a trial upon the merits. *Hatfield v. State,*9 Ind. App. 296, 36 N. E. 664; *People v.*Monaghan, 102 Cal. 229, 36 Pac. 511; *Morton v.*People, 47 Ill. 468; *Hensche v.*People, 16 Mich. 46. But it is not necessary, as counsel seem to think, that there should be a formal re-arraignment and plea by the accused, or that he should refuse to plead over in order that the former plea may properly be re-entered by the court. Where the plea is expressly withdrawn for the purpose of enabling the accused to enter a special plea, the reasonable inference is that the case will go to trial upon the merits in the event of such plea being overruled, and in such case the court may properly order the plea of not guilty to be re-entered. *Morton v.*People, *supra.*If such were not the case, the re-entry of the former plea by the court without objection, and going to trial upon the merits, as was done in this case, would constitute a complete waiver of any irregularity in the matter. A person can *200no more keep silent when he ought to speak in a criminal case than in any other, and then insist upon what he assented to by his silence as prejudicial error, where the right to do so is not given by some statutory or constitutional safeguard, plainly indicating that it is not a subject of waiver, or the denial of it plainly prejudicial. The doctrine on that subject is well established. It is stated in the books in this or similar language:

> “If, except where some counter doctrine presses with a superior force forbidding, a party has requested or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he cannot afterward complain of it, however contrary it was to his constitutional, statutory, or common-law rights.” Bishop, New Cr. Proc. § 118.

The accused was not precluded from waiving any irregularity in the entry of his plea of not guilty, if there was any such irregularity, and we say there was none. He had the full benefit of such a plea secured to him by the order of the court. Therefore, all irregularities were waived not only by his own conduct, but by sec. 2829, Stats. 1898, which requires the court, at every stage of an action, to disregard any error or defect in the pleadings or proceedings which does not affect the rights of the adverse party, and not reverse any judgment or allow it to be affected by reason of such error or defect.

Complaint is made because the court admitted evidence of violations.of the girl by the accused other than the particular one for which he was on trial. Since, on account of the age of the girl, her attitude in the matter of the commission of the offense at the time thereof was not material, and it appeared that the circumstances were such that had she been over the age of consent the offense would have been fornication, it seems that it was proper to permit proof of other violations of her by the accused, than the one for which he was on trial, as corroborative evidence, under the rule discussed and approved in *Proper v. State,*85 Wis. 615, 55 N.W. 1035. *201The doctrine on the subject laid down in *Comm. v. Merriam,*14 Pick. 518, was there referred to and approved. “Evidence should be excluded which tends only to the proof of collateral facts. It should be' admitted if it has a natural tendency to establish the fact in controversy.” Under that rule, in prosecutions for adultery, other adulterous acts between the parties than the one for which the accused is on trial, may properly be given in evidence upon the ground that they tend to corroborate the evidence as to the particular act of adultery charged. In this case it cannot be doubted that the evidence, as regards -other acts of intercourse between the accused and the girl, tended to corroborate her evidence as to the particular act .-alleged, the same as in a case of adulterous intercourse. In that view the evidence was clearly proper under *Proper v. State,*supra, and *McAllister v.*State, 112 Wis. 496, 88 N. W. 212.

The point is made that the conviction is wrong because it rests upon the uncorroborated evidence of the girl. That cannot be sustained for two reasons: First, it is not the law that a jury cannot- rightfully find a Verdict of guilty of the -crime of rape, especially when committed upon a child, on 'the uncorroborated evidence of the injured party. Second, because counsel is very far from right in the contention that the evidence of the prosecutrix in this case is entirely without ¡corroboration. There was much corroborating evidence of the girl. It does not seem that there is any need to refer to It in detail. The undisputed and indisputable fact that the girl gave birth to a child at a time consistent with her accusation against the plaintiff in error should not be so far overlooked as to say that her evidence is entirely uncorroborated. True, there is much support for the proposition contended for by counsel, that evidence corroborating the prosecutrix is necessary to a conviction in a prosecution for rape, but there are many authorities the other way, and in our judgment they are much more reasonable and safe to be followed. Even *202if it were not for that, this court has heretofore decided the question. Any rule, it would seem, should be condemned, which will render conviction of the heinous crime of rape impossible merely because neither the person suffering- the direct injury nor the public is able to produce evidence corroborating that of the prosecutrix. Evidence given by the victim of such an alleged outrage, in a prosecution of the alleged guilty party, certainly should be scrutinized with the greatest care — all the care which a person would devote to* the most important affairs of life; but it should not be regarded as insufficient as a matter of law to sustain a conviction. As this court said in *Osgood v. State,*64 Wis. 472, 25 N. W. 529, “The direct and positive testimony of the complaining witness, if believed by the jury, is amply sufficient to support the verdict.” The conviction there rested on the-uncorroborated evidence of the prosecuting witness, and was-sustained. If the rule were not as stated as regards a female over the age of consent, it should apply where the victim is a child under such age. One of the chief reasons for the contrary rule is the danger of a mere act of fornication or adultery being made the basis of a prosecution for the heinous, crime of rape. Courts have held, as it would seem, in reason,, they must hold, that corroborating evidence of the prosecu-trix, where she is under age of consent, is not essential to a conviction of such a violation of her person as is here charged. Female children are not so endangered as that by any mere weakness in the law. *Jones v. State,*68 Ga. 760 *; State v. Lattin,*29 Conn. 389. In the last case cited there-was no confirmation of the child’s testimony by evidence of' the condition of her person after the commission of the offense, by medical examination or otherwise, nor was there-any corroborating evidence by medical testimony, and the-verdict of guilty was sustained.

Several criticisms are made of rulings on requests by counsel for the accused for special instructions, and of instruc*203tions given in the general charge. It is not necessary to review all of the criticisms in detail. We are unable to discover any prejudicial error in any of such rulings, or in the general instructions given by the court, except those to which particular reference will be made.

The court said this to the jury: “It is a rule of common sense and sound logic that a party who testifies falsely upon any material question shall not be believed upon any other question, unless his evidence is fully and strongly corroborated.” No time need be spent to demonstrate that to be erroneous to a very high degree. It is not the law that a person who testifies falsely as to one material matter in the trial of a cause cannot properly be believed as to any other such matter. A jury may properly believe a witness who has testified upon several matters, as to some of them, though they may believe the testimony false upon others. They have not a right to reject all of a witness’s testimony merely because they conclude that he testified falsely as to some material matter. Much less are they bound to do so. If a witness wilfully testifies falsely as to any material matter in the trial of a cause, the jury may properly reject all of his evidence which is not corroborated by some other credible evidence. *Bratt v.*Swift, 99 Wis. 519, 15 N. W. 411; *Miller v.*State, 106 Wis. 156, 81 N. W. 1020. They are not, under such circumstances even, bound to disregard all the witness’s testimony. They are merely permitted to do so if, in their judgment, such discredit is, by the wilfully false evidence, cast upon all of his testimony that no credence can, in their judgment, be safely given to any part of it. It is not necessary to prevent the rejection of all of a witness’s testimony where some part of it is wilfully false on that ground alone, that the other part be fully and strongly corroborated, as the court put it; it is sufficient if it is corroborated by some credible evidence.

In a case of such serious character as this, where there is plainly room for a jury to come to a conclusion either for or *204against tRe accused, and tRe case rests, in tRe main, on tRe evidence of tRe two parties wRo were concerned in tRe act wRicR is tRe subject of investigation, and tRe evidence of eacR refers to several matters upon wliicR tRe witness may Rave testified falsely, tRougR not wilfully so; or, if otRerwise, tRe witness’s evidence upon some matters was corroborated by evidence wliicR migRt reasonably be considered credible, tRougR not up to that RigR standard of full and strong corroboration given by tRe learned judge in Ris instructions, it is easy to be seen Row sucR an erroneous rule of law as tRat under consideration might of itself move a jury to find a verdict of guilty where otRerwise a verdict of not guilty would be found. It seems that the plaintiff in error is entitled to a reversal and to again be permitted to Rave Ris cause submitted to a jury..

TRe jury were further instructed as follows: “TRe prose-cutrix has been corroborated in many respects, as to almost every fact that she testified to.” That, as it seems, was a prejudicial invasion of the province of the jury. The most that the court could properly Rave said on the subject referred to was that there was evidence tending to' corroborate the prosecuting witness upon the matters testified to by her. Instructions should not even go that far unless the tendency to corroborate is clear beyond any reasonable controversy. To pass upon the evidence in that regard by saying, in effect, tli at it fully corroborates other material evidence, is entirely unjustifiable.

TRe jury were further told in respect to the evidence produced by the accused to sustain Ris defense of alibi, that it did not necessarily establish beyond question the impossibility of Ris Raving committed the crime as charged. We are unable to conclude with reasonable certainty what idea the jury may Rave got from that instruction. It was capable of being so understood as to be prejudicial. It was not necessary to an acquittal on the strength of the alibi that it should be more than sufficiently established to raise a reasonable *205doubt as to whether the plaintiff in error committed the offense charged. Again, whether the alibi was so firmly established as to preclude any reasonable belief that the plaintiff in error was with the prosecutrix at the time she claimed he assaulted her, was one of the disputed questions in the case upon the evidence;, and the court should not have said anything liable to be taken in a way to usurp the functions of the jury in regard thereto. We are not unmindful that the language of the court under consideration is capable of a construction which would make it harmonize with correct principles. It is sufficient that the jury may probably have understood it otherwise.

The judgment is questioned because it was pronounced by the coui’t, a different judge presiding than the one who presided on the trial. That point is ruled against plaintiff in error by *Pegalow v. State,*20 Wis. 61.

There are some assignments of error to which we have not made particular reference, but all have been considered and are overruled except the errors in the charge which have been discussed at length. Eor such errors the judgment must be reversed and a new trial ordered.

*By the Oourt.*— The judgment is reversed and the cause remanded for a new trial, for which purpose the warden of the state prison is directed to deliver the plaintiff in error, *Dell Lanphere,*to the sheriff of Clark county, who is directed to safely keep the said *Dell Lanphere*in his said custody until he is duly discharged therefrom or it is otherwise ordered according to law.

A motion by the plaintiff in error for a rehearing was denied April 22, 1902.