Credibility of witnesses is a determination for the jury." Citing Tobar v. State, 32 Wis.2d 398, 145 N.W.2d 782 (1966), cert. denied 390 U.S. 960 (1968); State v. Hunt, 53 Wis.2d 734, 193 N.W.2d 858 (1972); Lemerond v. State, 44 Wis.2d 158, 170 N.W.2d 700 (1969); State v. Stevens, 26 Wis.2d 451, 132 N.W.2d 502 (1965). Additionally the trial court found the victim "is still in need of dental care."
The issues in the case define topics as material or collateral. Tobar v. State (1966), 32 Wis.2d 398, 405, 145 N.W.2d 782, certiorari denied 390 U.S. 960, 88 Sup.Ct. 1059, 19 L.Ed.2d 1157. Wigmore suggests that a matter is collateral if it does not meet the following test:
Credibility of witnesses is a determination for the jury. Tobar v. State (1966), 32 Wis.2d 398, 145 N.W.2d 782, certiorari denied (1968), 390 U.S. 960, 88 Sup.Ct. 1059, 19 L.Ed.2d 1157; State v. Hunt (1972), 53 Wis.2d 734, 193 N.W.2d 858; Lemerond v. state (1969), 44 Wis.2d 158, 170 N.W.2d 700; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502. We have reviewed the record in this case carefully and find no reversible error.
See: State v. Stevens (1965), 26 Wis.2d 451, 464, 132 N.W.2d 502, this court stating: ". . . The credibility of these witnesses and the weight to accord their conflicting testimony were properly a function for determination by the jury . . . ."See: Tobar v. State (1966), 32 Wis.2d 398, 403, 145 N.W.2d 782, certiorari denied, 390 U.S. 960, 88 Sup. Ct. 1059, 19 L.Ed. 2d 1157, this court stating: "The appellate court is not a place to reargue questions of credibility." Sec. 939.42, Stats., provides: "Intoxication.
The credibility of witnesses and the weight to accord their conflicting testimony is the proper function of the jury, and only if the evidence that the jury has relied upon is inherently or patently incredible or insufficient will this court substitute its judgment for that of the jury.Tobar v. State (1966), 32 Wis.2d 398, 145 N.W.2d 782, certiorari denied, 390 U.S. 960, 88 Sup.Ct. 1059, 19 L.Ed. 2d 1157.State v. Zdiarstek (1972), 53 Wis.2d 776, 193 N.W.2d 833; Lemerond v. State (1969), 44 Wis.2d 158, 170 N.W.2d 700; State v. McCarter (1967), 36 Wis.2d 608, 153 N.W.2d 527.
In light of Fields, we think it would be inconsistent now to enunciate a rule requiring that an addict's testimony be corroborated. Our holding that an addict's testimony need not be corroborated is in accord with the thinking of other courts. Commonwealth v. Harris, 186 Pa. Super. 59, 140 A.2d 344 (1958); Commonwealth v. Aikens, 179 Pa. Super. 501, 118 A.2d 205 (1955); Tobar v. State, 32 Wis.2d 398, 145 N.W.2d 782 (1966), cert. denied, 390 U.S. 960, 88 S.Ct. 1059, 19 L.Ed.2d 1157 (1968); cf. United States v. Griffin, 382 F.2d 823 (6th Cir. 1967); People v. Romero, 54 Ill. App.2d 184, 203 N.E.2d 635 (1964). We thus conclude that the testimony of an admitted addict need not be corroborated.
What constitutes a collateral matter depends on the issues of the particular case and the substance, rather than the form, of the questions asked on direct examination. Tobar v. State (1966), 32 Wis.2d 398, 145 N.W.2d 782. Even where evidence is relevant, it is within the discretion of the trial court to exclude the evidence where its probative value is outweighed by possible jury prejudice. Boller v. Cofrances, supra; Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557.
The state's two other witnesses both had left the barroom before the shooting began, and neither one knew whether Kyles had fired any shots. The four witnesses called by the defense all unequivocally testified that Banks had turned his back and walked toward the door and was opening or had reached the door when Kyles shot at him, and that this was the first shot. These were four disinterested witnesses, two of whom received gunshot wounds as a result of the incident. Since none of the testimony in the record is inherently incredible, if it were clear that all of the factual issues had been considered and resolved at the trial they could not be reargued here. Tobar v. State (1966), 32 Wis.2d 398, 145 N.W.2d 782. But as indicated above, the trial court's comments make it questionable whether it decided to believe or disbelieve Kyles' testimony. Assuming it might have believed that Kyles did in fact shoot at the defendant, then it appears that the court considered such act provoked, and did not consider the factual question of the defendant's withdrawal.
The test then for sufficiency upon appellate review is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be convinced to the degree of certitude by the evidence which it had a right to believe and accept as true. Tobar v. State, 145 N.W.2d 782 (Wis. 1966). We do not perceive this to be the standard applied by the intermediate appellate courts in Illinois subsequent to the decision in People v. Bazemore, 182 N.E.2d 649 (Ill. 1962).
See also United States v. Tannuzzo (C.A.2d N.Y.) 174 F.2d 177, conviction for transporting and conspiring to transport stolen fur coats in interstate commerce; Beland v. State, 86 Tex.Cr.R. 285, 217 S.W. 147, conviction for felony theft; People v. Nelson, 33 Ill.2d 48, 210 N.E.2d 212, conviction of murder. For example in addition to People v. Williams, supra, see Brown v. United States (C.A. 9th Cal.) 222 F.2d 293; Tobar v. State, 32 Wis.2d 398, 145 N.W.2d 782; People v. Sorrentini, 26 A.D. 2d 827, 273 N.Y.S.2d 981; Commonwealth v. Davis, 183 Pa.Super. 347, 132 A.2d 408; Commonwealth v. Aikens, 179 Pa.Super. 501, 118 A.2d 205; People v. Hill, 83 Ill.App.2d 116, 227 N.E.2d 117; People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224. Unless Vaughn's testimony was clearly unbelievable or impossible under the facts and circumstances (and we cannot say it was), it was for the jury to decide how much credence to give Vaughn's testimony.