O'Toole v. State

The first and third assignments of error are ^predicated upon insufficiency of the evidence to support the verdict. They cannot be considered in the absence of a motion to set aside the verdict and grant a new trial on that ground, made before sentence and judgment. True, a motion to set aside the judgment and grant a new trial was made and denied by order after judgment. Such motion and order, however, are not brought up for review by writ of error to the judgment. John Pritzlaff H. Co. v. Berghoefer, 103 Wis. 359; Reed v. Madison, 85 Wis. 667; Jackson v. State, 92 Wis. 422, 427. True the foregoing considerations were not suggested, nor the authorities in support thereof presented, by counsel for the state; but this court •cannot assume to decide questions which are not before it for review.

The second assignment of error presents the testimony of two policemen to the effect that the prosecuting witness, on the day after the robbery, stated that plaintiff in error was the man who committed it. This was pure hearsay evidence . upon the principal fact in issue. It was placing before the *21jury an unsworn declaration under circumstances likely to give it great weight. The darkness and confusion surrounding the robbery justified an argument upon the improbability of the prosecutor’s ability to have seen his assailant sufficiently to identify him, and the declaration of defendant’s identity when presented among others before complainant must have weighed with the jury upon the fact so-declared, and therefore prejudiced the accused. Error was. thus committed, for which the judgment must be reversed. Reddick v. State, 35 Tex. Cr. 463; Lewis v. State, 62 Ark. 494; Brooks v. State, 96 Ga. 353; State v. Foley, 130 Mo. 482.

The fourth assignment of error challenges the sufficiency of the verdict, which finds that the defendant had previously been sentenced merely “ by a court of this state,” while the-information alleges such sentencing “ by the circuit court of Douglas county.” Doubtless the prosecution must confine-its proofs to the allegations, of the information, and cannot support them by proof of a sentence by a different court. Possibly this verdict is ambiguous as to whether the jury may have found a sentencing by some other court than the one specified (Allen v. State, 85 Wis. 22), though there are-cogent considerations to the contrary. We need not, however, decide that question, as it probably will not arise upon another trial. Addition of the words “ as charged in the information,” or some other suitable phrase, will readily-avoid possibility of misunderstanding.

By the Oowrt.— Judgment reversed, and cause remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Douglas county,, who will hold him in custody until he shall be discharged by due course of law.