Opinion
June 10, 1949. —
July 12, 1949.
ERROR to review a judgment of the municipal court of Brown county: DONALD W. GLEASON, Judge. Reversed.
For the plaintiff in error there was a brief by Martin, Clifford, Dilweg, Warne Duffy of Green Bay, and oral argument by Lloyd C. Warne.
For the defendant in error there was a brief by the Attorney General, William A. Platz, assistant attorney general, and Robert J. Parins, district attorney of Brown county, and oral argument by Mr. Platz.
Plaintiff in error was convicted of the crime of breaking and entering in the nighttime, upon the verdict of a jury, and sentenced to imprisonment at the state prison at Waupun for an indeterminate term of not less than one year nor more than eight years.
Joseph Pleau, plaintiff in error, was charged by the state with burglary of the Bayliss Distributing Company of Green Bay, Wisconsin, on October 28, 1948. Prior to the trial of Joseph Pleau, one Vernon Russell had been convicted of the same charge and sentenced to Waupun. At the trial of Pleau, Russell was one of the main witnesses for the state and was produced in court on a subpoena ad testificandum.
When Russell took the stand and was questioned by the district attorney as to the identification of the persons who were with him at the time of the burglary he stated that he preferred not to answer. The court advised him that he was required to testify, and when he reiterated that he would sooner not say who was with him, the court advised him that if he refused to testify he could nevertheless be compelled to. The court then advised him that he had been offered immunity from further prosecution and the court could compel him to testify, whereupon the defense attorney asked the court to instruct the witness as to the penalty for contempt. The court inquired whether he wanted to testify in view of the fact that he could be compelled to, and the witness answered "No."
The district attorney then asked the court to declare the witness to be hostile, which motion was not decided by the court. The district attorney then inquired whether or not Mr. and Mrs. Pleau were with him on the night of October 28th, to which the witness replied, "I'd rather not say." After some further discussion court was adjourned over the noon hour. Upon reconvening in the afternoon the district attorney inquired again whether Mr. and Mrs. Pleau were with Russell at the Bayliss Distributing Company, and the defense attorney said, "I object again. He has already testified to that this morning. He refused to testify and he is now asking him the same question." The district attorney moved the court to instruct the witness to answer, and the defense attorney said, "I also ask the court to instruct the witness that if he fails to answer the question he is only in contempt of court."
The court then instructed the witness at length regarding his duty to testify and that his continued refusal would result in his being punished for contempt of court. Defense counsel expressed dissatisfaction with the instruction and stated in part, "The court may have left the inference that he had to testify regardless. The court should instruct that the only thing the court can compel is the entering of an order telling the witness to testify. And he can still continue to refuse if he so desires and the punishment is contempt of court." The witness then inquired what the punishment for contempt was, and the court pointed out that it was by fine or imprisonment in the county jail, or both. Defense counsel volunteered the information that the imprisonment was not to exceed thirty days. The witness then inquired whether the term would run concurrently with the prison term, and the court indicated that it would determine that later. The witness then resumed testifying to the effect that he was driven to the Bayliss Distributing Company warehouse by Joseph Pleau, and Lois Pleau was with him. The district attorney then asked the following questions and received the following answers:
" Q. Where did they pick you up that evening Mr. Russell? A. I think that is all down there in the testimony now.
" Q. Please answer the question. A. No.
" Q. You won't answer the question? A. No, not when I answered them once."
The reference was to testimony previously given by Russell in the preliminary examination. The preliminary examinations of both Russell and Joseph Pleau were apparently held together.
On motion of the district attorney the court then declared Russell to be a hostile witness, and after a few other preliminary questions the district attorney read to the jury the entire direct examination of Russell at the preliminary examination. The defense counsel conducted no cross-examination of Russell nor did he offer any of the testimony adduced upon cross-examination of Russell at the preliminary examination.
The case proceeded to trial without Pleau taking the witness chair in his own defense. In oral argument to the jury the district attorney commented, "Why doesn't Mr. Pleau, why doesn't he deny this crime?" Defense counsel asked the court to instruct the district attorney to refrain from that type of argument. The court said, "The notation has been made on the record and the court will instruct the jury during the course of its instructions that the plea of `not guilty' is a denial of each allegation of the crime and that defendant is not required or compelled to take the witness stand or testify on his own behalf."
Later in his argument the district attorney said, "Again I ask Mr. Warne [defense counsel] why Mr. Pleau has not taken the stand." The court said, upon objection, "Reference of failure of defendant to take the stand should not be made."
In the court's instructions to the jury it again attempted to remedy the evil of the district attorney's argument by instructing that it was improper and that the jury should not consider defendant's failure to testify as evidence of guilt.
Two errors are assigned, — one, the admission into evidence of the testimony of Russell given at the preliminary examination, and, second, the improper argument of the district attorney.
We are of the opinion that the combination of both constituted prejudicial error which requires a new trial. We feel constrained to point out to the trial court that it was its duty to have impressed upon the witness Russell that the court would compel him to testify and that he would be punished for contempt if he refused. We are also of the opinion that the court had the duty of dealing more stringently with defense counsel who by his conduct encouraged the witness to refuse to testify.
However, these matters cannot be charged to Pleau himself, who is entitled to a fair trial upon proper evidence. Counsel for the state argues at length that because of the statute (sec. 325.31) making available the testimony of a deceased witness or a witness absent from the state, taken in any action or proceeding where the party against whom it is offered should have an opportunity to cross-examine the witness and where the issue upon which it is offered is substantially the same as the one upon which it is taken, and because of the common law to the same effect — that under the circumstances of this case it was proper for the trial court to permit the district attorney to read the testimony of Russell given at the preliminary examination. There is no question that the state had the right to use the testimony of Russell given at the preliminary for impeachment purposes. This, however, does not authorize the substitution by reading of that testimony for the testimony of the witness who was present in court. In determining Pleau's guilt or innocence the jury had the right to hear from the lips of the witnesses available the testimony which they proposed to give. Where a witness for the state becomes hostile and refuses voluntarily to give the testimony which he is capable of, it places a hardship upon the prosecution. This, however, does not justify disregard of the rights of the defendant in order to overcome the state's difficulty. The trial court had the duty and the facilities to compel Russell to testify.
The trial court in its instructions did attempt to overcome the prejudicial effect of the improper argument made by the district attorney. However, it is apparent that its first admonition to the prosecutor was not sufficiently forceful to deter him from a second abuse, and it is reasonable to assume that it may not have sufficiently impressed the jury that the conduct of the district attorney was improper and his remark was to be disregarded.
The two improper statements of the attorney for the state and the admission of the evidence from the preliminary examination constitute prejudicial errors which require reversal of the conviction.
By the Court. — Judgment reversed and cause remanded for a new trial. The warden of the state prison is directed to remand the plaintiff in error to the sheriff of Brown county who is directed to hold him in custody until the further order of the municipal court of Brown county.