146 Wis. 280 | Wis. | 1911
The following appeared on' the trial without substantial controversy: On the night of December 2 and 3, 1909, the accused, — a tall strong man about twenty-five years of age, — his aunt, a woman about fifty years old, known as “Quiz,” her husband, Louis Mitchell, a man about seventy-five years of age, Maggie Sullivan, Mrs. Mitchell’s aunt — an old lady, — and a small boy, the son of Mitchell and wife, were .at the latter’s home in the woods quite a distance from other habitations. They were all partly of Indian blood. The house was a small affair, having, in the main, one room on the ground and some room above reached by a ladder and used
Complaint is made because manslaughter in the fourth degree was. not submitted, the claim being that if the accused was guilty of any homicidal offense the jury might, on the ■evidence, have reasonably come to the conclusion that it was of that low grade.
A case falling within any grade of criminal homicide above the second phase of manslaughter in the fourth degree is excluded therefrom. Doherty v. State, 84 Wis. 152, 58 N. W. 1120. One falling within any grade above the first phase of such fourth degree cannot be of the latter nature. Doherty v. State, supra. The trial court in submitting a homicidal case to a jury must, necessarily, pass on the question of what degrees, in any reasonable view of the evidence, are involved, and shape the instructions accordingly. His decision in that regard cannot be disturbed on appeal unless clearly wrong and, clearly, may have been prejudicial to the accused, and then the matter need not, necessarily, be reviewed unless the ■question in regard thereto' was properly preserved and brought to the attention of the reviewing court.
Technically, the complaint under discussion might be passed under the last clause of the foregoing. However, the •case is of such serious character, it is thought best to consider it as if a formal request had been made upon the trial for submission to the jury of manslaughter in the fourth degree and an exception had been formally saved to the refusal to •do so.
On the evidence it appears that the accused unnecessarily killed Mitchell, either in resisting an unlawful act of the latter or immediately after such act had failed, and in close ■connection therewith, satisfying the essentials of manslaughter in the second degree. For that reason if for no- other, the court properly refused to submit manslaughter in the fourth degree, because if there were added circumstances removing the homicide from such degree, not rendering it jus-
For instance, the weapon used, considering it was purposely laid with much force on a vital part of Mitchell’s person and in a way to naturally produce his death, was obviously a dangerous one, satisfying, except for the element of “heat of passion,” the calls of manslaughter in the third degree, and excluding the offense on that ground from the first phase of' manslaughter in the fourth degree. It will be noted that the element of heat of passion is common to both degrees; also,, that of killing with a weapon, the distinguishing characteristics between the two being that in the third degree the-weapon must be dangerous and in the fourth not so; Keenan v. State, 8 Wis. 132; and in the latter the homicide must be-involuntary and in the former voluntary.
In the latter respect mentioned the offense in question did' not fall within the field covered by the fourth degree. Johnson v. State, 129 Wis. 146, 108 N. W. 55. If one purposely assaults another with a dangerous weapon in a way to naturally, and according to the ordinary course of things, inflict great bodily harm, and within reasonable probabilities, at least, cause death, and death ensues, the result is voluntary,, not in the sense that it was intended, but that the act was intentional and perpetrated with such disregard of consequences-as to negative the idea that what followed was accidental. The logic of Johnson v. State, supra, following Keenan v. State, 8 Wis. 132, and the general trend of authority on the-subject and correcting the mistake made in Schlect v. State, 75 Wis. 486, 44 N. W. 509, will be found illustrated by numerous cases decided in other jurisdictions, of which the-following are but a few: Smith v. State, 73 Ga. 79; State v. Cantieny, 34 Minn. 1, 7, 24 N. W. 458; Conner v. Comm. 76 Ky. 714, 718; Trimble v. Comm. 78 Ky. 176; State v. Trusty, 1 Pennewill (Del.) 319; State v. Jones, 2 Pennewill (Del.) 573; State v. Miller, 9 Houst. (Del.) 564;
Some of the decisions referred to were under statutes, varying, somewhat, from ours on the subject of criminal involuntary taking of human life, but all support the idea that where the act is voluntary and regardless of consequences, especially if with a dangerous weapon, it is felonious, in that it is liable to do great bodily harm, and regarded as so intended, actually •or constructively, and liable to cause death, though without any specific intent to produce such result; and if such result follows, it is impressed with and takes the character of the act itself, as to whether voluntary or involuntary, thus excluding the idea of the killing being within the grade of homicidal offenses described as manslaughter in the fourth degree. 'So the trial court properly refused to submit such degree to the jury.
Error is assigned because the trial court instructed the jury in this language:
“If you find that the evidence of any witness is wilfully false, in any material particular, then you may, if you see ■fit, reject the evidence of such witness entirely.”
The criticism is that the words “material particular” were used instead of “any material fact;” or “matter material to the case,” or “any material matter in issue,” and omitting the words “which is not corroborated by credible evidence” or some plainly equivalent words. Some other departures in phrasing the rule the trial court evidently attempted to give, from the way many times approved or suggested by this court, might well have been mentioned. On the whole, the instruction given is very faulty and in one respect prejudicial. The term “any material particular” is perhaps a fair equivalent. for “any material fact” or “matter material to the issue,” but why try to invent new methods of stating the simple rule so well understood and so easily stated, without the slightest risk of committing error, if only the history of the subject in
On tbe subject of whether tbe homicide was characterized by tbe specific intent, to take human life essential to murder in tbe first degree, distinguishing it from lower degrees, tbe trial court instructed tbe jury in these words:
“In deciding whether the defendant is guilty of murder or of manslaughter, you will bear in mind that tbe law presumes that tbe person intended tbe consequences of bis acts.”
There is very little, if any, justification for giving such an unguarded instruction as a warrant for finding tbe specific intent to kill a human being essential to tbe highest degree of
Neither in civil nor criminal matters, is the law so uncharitable as to hold one presumptively accountable for having, precedent to his every act leading naturally, however remotely, to a particular result, mentally determined upon effecting such result, and perpetrated such act to that end. It is only where the result is the one which would be ordinarily expected to occur under ‘the circumstances, — one so-common that any person circumstanced like the actor would probably expect it to occur.
The rule which the trial court improperly stated, is most safely and commonly phrased as suggested in Cupps v. State, 120 Wis. 504, 515, 97 N. W. 210, 98 N. W. 546, this way:
“In the absence of evidence to the contrary, he who takes the life of another by the infliction of a wound or some act naturally and probably calculated to produce death, is presumed to have intended that result.”
One of the most learned of our text-writers puts it this-way: “Every person is presumed to contemplate the ordinary and natural consequences of his own acts.” 3 Greenl. Ev. §14. '
Courts generally follow that phrasing substantially. State v. Lautenschlager, 22 Minn. 514; State v. Brown, 41 Minn. 319, 43 N. W. 69. In Clifford v. State, 58 Wis. 477, 17 N. W. 304, the court approved this statement of the rule: “A reasonable person intends all the natural, probable, and usual consequences of his acts,” and this statement of it: “If a reasonable man uses a deadly weapon and life is taken, he is presumed to intend the natural consequences of his act and would
In a quite limited sense- one is presumed to intend the natural result of his acts. So, as said by the learned text-writer to whom we have referred:
“When one man is found to have killed another, if the circumstances of the'homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer and the burden of proof is on him to show that it was otherwise.”
Thus where the character of the act is known, which is the case commonly ánd was here, then the specific intent to effect the result of such act, in case of its being death, is no°t presumed unless such result was “the necessary,” “probable,” “usual,” or “ordinary” result of such act. The several words, are used as alternatives and substantially as synonyms.
Applying the foregoing to this case the prejudicial character of the instruction is very apparent. While the gun barrel was, considering the manner of its use, a dangerous weapon, blows with one, as in this case, not delivered with sufficient force to fracture the skull, would not necessarily, or generally, cause death. Perhaps such a result would rather be exceptional than usual. So such result, looking to the circumstances alone, would not raise a presumption of specific intent to slay. The jury may well have based the verdict largely, if not wholly, on a different idea. There is a strong probability that they did, since there is very slight evidence, if any, of such specific intent.
In view of what has been said, the point made in the argument, based on exceptions in the record duly saved, that the verdict of murder in the first degree is contrary to the evidence, seems well taken.
The circumstances of the homicide seem to rather negative
The complaint that the court neglected to define “heat of passion” is answered, sufficiently to preclude condemnation of the result of the trial for failure to do so, because no request was made on the subject. True, the jury might well have been judicially advised in respect to the matter. True, had they been so advised the result might have been different. True, also, good administration in such a case calls for such
Tbe result of tbe foregoing is that tbe judgment must be reversed and cause remanded for a new trial.
By the Gowrt. — So ordered, and that tbe warden of the state prison deliver the accused into tbe custody of the sheriff of Bayfield county to be by him beld until be shall be discharged or his custody changed by due course of law.