61 Wis. 440 | Wis. | 1884
On the second trial of this cause, as on the first (see 57 Wis. 472), the real difficult question to determine was whether the death of defendant’s wife was caused by violence applied by some person, or whether it was the result of her debauch. The clear and decided weight of the medical testimony tended to prove that the deceased died from strangulation, choking, or suffocation, which produced asphyxia; but what means were employed to produce asphyxia was left to inference. As observed by Mr. Justice Taylor, in his opinion in 57 Wis., the theory of the prosecution was that the defendant killed his wife by applying pressure or force upon the upper part of the chest, or upon the throat or mouth by his hand, or in some other way, so as to effectually exclude all air from her lungs. The 2?ost mortem examinations which were made disclosed marks or discolorations on the upper part of the breast bone, and upon the neck, which might have been produced by the hand of a man pressing upon and clasping the throat, and thus choking and smothering her.
In State v. Watkins, 9 Conn. 47, the public prosecutor, on the trial of an indictment for the murder of defendant’s wife, in the absence of direct evidence of the alleged murder, offered, with other presumptive evidence, testimony to prove that for some months before and down to the time of the alleged murder an adulterous intercourse subsisted between the defendant and Mrs. B. It was held that such
It is important to bear in mind the object of the testimony in question and the facts intended to be established by it. And that was to show that the defendant did not entertain a proper regard and affection for his wife; that he had previously, and more than once, committed brutal assaults upon her, w'hen, it is charitable to suppose, he was excited by ungovernable passion; that he had struck and kicked her, even when she was sick, without any apparent provocation. The evidence certainly tended to prove these facts, and it seems to us it was competent, because it showed how the defendant had treated his wife, and how insensible he was at times to her welfare. The jury surely would be warranted in concluding that the same disposition, the same bad feeling towards his wife on his part, continued up to the time of the alleged homicide. All this evidence, together with the other facts and circumstances from which an inference could be made as to the truth and probability of the main charge, were proper matters for the consideration of the jury. On this point we may cite the pertinent remarks of the supreme court of Iowa in a recent case: “ It may be conceded, as the defendant claims, that upon a trial for a criminal offense evidence of independent acts of bad conduct is not ordinarily admissible, and in no case to establish the body of the crime. But upon a trial for murder,
There are other authorities which sustain the admission of such testimony for the purpose of showing the state of feeling on the part of the defendant towards the deceased. People v. Bemis, 51 Mich. 422; State v. Moelchen, 53 Iowa, 310; People v. Williams, 3 Parker, Crim. R. 84; McCann v. People, id. 272; State v. Green, 35 Conn. 203; Sayres v. Comm. 88 Pa. St. 291. It is true, in these cases the question of motive or intent was material, and so it is here, for under the information the defendant might have been con-' victed of murder in the second degree if the proof had warranted it. “ Considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind, would a motive be trifling and insignificant which might prompt to the commission of a great crime.” People v. Hendrickson, 9 How. Pr. 165; Benedict v. State, 14 Wis. 424.
It is said this evidence of bad feeling or ill-treatment was too remote, and for that reason should have been excluded. But the same objection was taken to such testimony in People v. Bemis, McCann v. People, and Sayres v. Comm., supra; but it was held proper to let the testimony go to the jury to be considered with the other evidence.
The case of Albricht v. State, 6 Wis. 74, is referred to on this point by defendant’s counsel, and requires a word of comment. That was an indictment for manslaughter in the third degree, it being alleged that the killing was in the heat of passion, without a design to effect death. It was held in that case to be error to admit evidence of facts tending to prove other assaults upon the deceased for the purpose of
Dr. Davis, one of the physicians who aided in making both examinations of the body, among other questions was asked this one by the prosecution: “ How do you account for these finger-marks upon the neck, ■which you discovered upon the first examination, not appearing on the second examination?” The question was objected to as assuming that the marks upon the neck were in fact finger-marks. It is said the jury, from the form of the question, might well infer, and had the right to infer, that the court regarded the proof as sufficient to show that these marks were actual finger-marks. ¥e do not think there was' any danger that the jury would draw any such inference from this course of examination. The marks were spoken of in this question and in other places as finger-marks, as á ready way of directing the attention of witnesses to them. It was a convenient mode of describing them, but it did not imply or really assume that such marks were actually made by the hand of any one.
The counsel for the defendant in divers ways objected to the medical witnesses giving their opinion as to the cause of the death of the deceased. These witnesses were fully competent to testify as experts under sec. 1436, E. S. They had attended one or both of the post mortem examinations, and they based their opinion upon the condition and position of the dead body as they found it; upon the pathological condition of the internal organs, their congestive
On the second trial the defendant could not be convicted of any crime higher than murder in the second degree, but might be convicted of a crime of less grade, as ,he was. Consequently, any evidence which would tend to convict him of murder in the .second degree, or of manslaughter in some degree, was competent and proper under the information. We cannot notice all the objections which were taken to the admission or exclusion of evidence. We have only discussed those which we deem most important; as to the rest, we content ourselves with saying that we do not consider that there was any error, either in the admission or exclusion of testimony, which could have prejudiced the defendant.
The charge of the court is clear and quite full upon the law of homicide applicable to the case. No exceptions were taken to the charge, except to two or three portions of it, and these portions are rather objected to as not being founded upon the evidence, rather than as being incorrect statements of the law. But we shall not dwell upon the charge, which we think was correct. All the defendant’s instructions were given except one, which was plainly erro-, neous, for the reason stated by the circuit judge.
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.