Havenor v. State, 125 Wis. 444.

why the rule there established was not applied to this case. In addition to the question then presented before this court upon this subject, it is now contended that the minutes of the clerk of the grand jury of their proceedings are a public record, and that every person is entitled to inspect them as such, and to offer them as evidence upon the trial of causes. By ch. 90, Laws of 1903, additional provision is made for keeping a record of grand jury proceedings by providing that, if the trial judge deems it necessary, he may order that the grand jury employ a stenographic reporter to take down a complete report of their proceedings, transcribe them into longhand, and deposit them with the district attorney of the county or with the attorney general, or both, as the grand jury may direct. The act also provides that such reporter, before assuming such duties, shall take and file an oath obligating himself to a faithful performance of these duties, "and to keep inviolate the secrecy required by law to be kept relative to such proceedings." This language in the statute strongly indicates that the legislature intended that nothing in this act should be construed to remove any of the obligations of secrecy concerning grand jury proceedings. The claim now presented, that the obligation of secrecy does not extend to such records, is in no way affected by this legislative action, and such obligation must be held to exist as it did before this legislation. The rule of secrecy as to such proceedings, its purposes, and the statutes declaratory thereof were considered and applied to the Murphy Case, and the conclusions there reached must be adhered to. We find no ground for the claim that the record of such proceedings is to be treated as a public record, open to the inspection of all persons. To so hold would not only conflict with every purpose for keeping secret such proceedings, but would result in a total abrogation of the rule. Such is clearly not the law, and such secrecy must be maintained and kept inviolate within the bounds prescribed by the statutes and the decisions.

VOL. 125-29

Havenor v. State, 125 Wis. 444.

It is urged that the plaintiff in error was entitled to inspection of such records in so far as they relate to the testimony given by plaintiff in error before the grand jury concerning the transaction involved upon this trial, and that such inspection should be awarded both before the trial and at the trial, for the purpose of preparing for trial and for laying the foundation for the impeachment of immune witnesses, whose testimony may be different on the trial from that given before the grand jury. No rules, either at the common law or by the statutes governing criminal procedure, award such a right. It was held in Cornell v. State, 104 Wis. 527, 80 N. W. 745, that a defendant in a criminal prosecution was not entitled to be informed of the names of the witnesses for the prosecution before trial, to enable him to prepare his case on the defense. We can see no distinction in the claim now made from the one made in that case. The reason for the request in both cases is that such information is necessary to enable the defendant to prepare for trial and to apprise him what evidence will be material to his defense. We do not see how the defendant can be prejudiced by withholding such information until the evidence is offered upon the trial, nor is it suggested in what respect this practice prevents him from procuring and adducing all the evidence at hand to establish the facts of his defense. The charge preferred in the indictment, information, or complaint fully informs him as to what facts the prosecution expects to establish by the evidence upon the trial, and this meets all the necessary requirements of the right which the accused has in criminal cases to be informed of the nature and cause of the accusation against him.

It is urged that proof of the defendant's testimony given before the grand jury may be made by offering the records of the grand jury's proceedings as kept by the stenographic reporter, upon the ground that they are statements made by officials in pursuance of official duty. Such reports and min

Havenor v. State, 125 Wis. 444.

utes of proceedings are not classed as official statements which in themselves constitute proof of the facts thus reported, but are treated as memoranda made by the official in the course. of his official duties, and can only be used in evidence when the official can testify that at or about the time the records were made he knew their contents and the accuracy thereof. This is upon the theory that such records are not to be treated. as independent evidentiary instruments, but are to be treated as memoranda to be used by these officials when they are called as witnesses to the facts therein reported. For this purpose the memoranda may be used in two ways aid the witness in his present recollection or in his past recollection of their contents. Zitske v. Goldberg, 38 Wis. 216; Jackson v. State, 81 Wis. 127, 51 N. W. 89; Eggett v. Allen, 119 Wis. 625, 96 N. W. 803; 1 Greenl. Evidence (16th ed.) § 166; Hair v. State, 16 Neb. 601, 21 N. W. 464. The distinction of these uses is clearly stated in 1 Greenleaf, Evidence (16th ed.) § 439a:

either to

"It is to-day generally understood that there are two sorts of recollection which are properly available for a witness-past recollection and present recollection. In the latter and usual sort the witness either has a sufficiently clear recollection, or can summon it and make it distinct and actual if he can stimulate and refresh it, and the chief question is as to the propriety of certain means of stimulating it—in particular, of using written or printed notes, memoranda, or other things as refreshing it. In the former sort [past recollection] the witness is totally lacking in present recollection and cannot revive it by stimulation; but there was a time when he did have a sufficient recollection and when it was recorded, so that he can adopt this record of his then existing recollection and use it as sufficiently representing the tenor of his knowledge on the subject."

This is the basis of the rule upheld in Nehrling v. Herold Co. 112 Wis. 558, 88 N. W. 614, namely:

"The statement of the witness and the contents of the paper together are equivalent to the present positive statement of

Schutz v. State, 125 Wis. 452.

the witness affirming the truth of the facts stated in the memorandum." Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Hazer v. Streich, 92 Wis. 505, 66 N. W. 720; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; People v. Murphy, 45 Cal. 137.

Access to the records of these minutes and stenographic reports of grand jury proceedings by counsel of the accused are controlled by the rule of secrecy pertaining to grand jury proceedings, and the usual practice of permitting inspection of records or memoranda, by limiting it to such portions as are actually used in the evidence, and in such manner and at such times during the progress of the trial as the trial court may direct.

By the Court.-The judgment is reversed and the cause is remanded for a new trial.

SCHUTZ, Plaintiff in error, vs. THE STATE, Defendant in

error.

May 10-June 23, 1905.

Criminal law and practice: Bribery: Elements of offense: Statutes: Evidence: Declarations of conspirators: Preliminary inquiry: Res gestæ: Instructions to jury: Witnesses: Motive: Reputation: Credibility: Singling out witness: Interest of witnesses.

1. In a criminal prosecution for bribery, direct testimony both of the making of the promise and of payment of the money is sufficient to carry both questions to the jury, notwithstanding defendant's direct denial and the testimony of several witnesses in refutation of the payment.

2. In a prosecution for bribery the charge and proof of the acceptance of a promise to pay money in the future will support a conviction under sec. 4475, Stats. 1898 (denouncing a punishment for curruptly accepting or receiving "any gift, gratuity, money, goods, things in action, personal or real property or any thing of value, or any such pecuniary or other personal advantage, present or prospective," etc.)

Schutz v. State, 125 Wis. 452.

3. In a prosecution for bribery it appeared from the testimony, among other things, that defendant asked A., the person alleged to have corruptly paid defendant money to influence his official action, if things were fixed with P., and that defendant afterwards asked for the money, in accord with P.'s arrangement. Held, that such evidence was sufficient to make such a prima facie case of agency and confederacy between defendant and P. as to support a ruling of the trial court admitting such statements of P., who was dead, as were strictly res gesta, within the rule that the trial court's decision as to whether a conspiracy existed prima facie has the weight of any other finding of fact.

4. Statements of a confederate or co-conspirator, accompanying acts in furtherance of the conspiracy, are admissible as against all other parties to the conspiracy.

5. In a criminal prosecution an instruction to the jury: "The office of evidence respecting good reputation is not to raise a doubt of guilt, but to aid in solving it," is erroneous and prejudicial. 6. In a prosecution for bribery the principal testimony against the accused consisted of a conversation by a witness for the state with a third person, since deceased, which was antagonized, in one respect or another, by witnesses other than the defendant. In reference to this testimony the court instructed the jury: "Is the evidence given by A. [the state's witness] in this case true, or is it untrue? Did he make up or did he fabricate the story which he has told, for the purpose of convicting an innocent man? These are questions which each of you should consider in weighing his testimony. It is your plain duty, if you believe that A. made up or fabricated the story which he has disclosed to you, to determine, if you can, the motive for such a course on his part. It is quite improbable that such a thing could be done without a motive. In this connection the court instructs you that if you should agree with the defendant that the testimony of A. is a pure fabrication, you should at least be able to find some motive for such a wicked fabrication on his part." Held, erroneous:

(1) It excluded the jury from considering whether a conflict of evidence might be accounted for on the ground of honest mistake.

(2) It selected one witness from several and applied to him and his testimony, exclusively, rules of construction equally applicable to others.

(3) It declared the necessity of discovering the motive as a sine qua non to the disbelief of A., even though he was squarely contradicted by other credible evidence.