142 Wis. 137 | Wis. | 1910
The principal error assigned and argued is that the trial court refused to submit to the jury the question of manslaughter in the third degree as defined by sec. 4354, Stats. (1898). That section provides that:
“Any person who shall kill another in the heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to be justifiable or excusable, shall be guilty of manslaughter in the third degree.”
FTo request in writing was presented to the court, but, as shown by the bill of exceptions, the counsel for accused stated orally: “Defendant now moves the court to submit to the jury manslaughter in the third degree under sec. 4354 and appropriate instructions on said section.” Under the rule of Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546, the accused cannot, as a matter of strict legal right, predicate error upon the refusal of any instruction so requested. But this court may in its discretion consider the noint as raised.
On cross-examination it was shown that after the alleged insult in the morning of June 26th he had met Smith at Linstroth’s house at dinner and again at supper, and again in the evening going down to Kenosha and returning, but had no conversation with him. He did not ask Smith to apologize at noontime when Mrs1. Linstroth was there because he did not intend to say anything to him at all, nor at supper
On this testimony of the accused there was nothing to warrant submission to the jury of instructions relative to manslaughter in the third degree under sec. 4354, Stats. (1898).. This section is not intended to apply to a case where the ac
The following portion of the charge is excepted to:
“When self-defense is interposed in justification, the first inquiry is as to alleged necessity. No right is to be abused or to be made a cloak for wrongdoing, and therefore the law limits the right of self-defense to necessity as it reasonably appears to the defendant at the time. The taking of human life is of such terrible significance that it cannot be justified by some slight appearance of danger-.: The person doing the shooting, in acting upon appearances and in taking the life ■of his fellowman, so acts at his peril, and will not be excused unless the circumstances proven were such as would reasonably cause him to believe his act necessary to save his own life •or to save himself from great personal injury. The reasonableness of the apprehension is to be judged from the standpoint of the defendant at the time, and not from that of the .jury now.”
The foregoing instruction was appropriate to the instant •case and not erroneous. The court further instructed the jury as follows:
“If the defendant was in fault in creating the situation of ■danger, his right of self-defense does not arise until he shall have done all that he could reasonably have done to avoid the necessity of killing Smith in order to protect himself.”
There is evidence from which the jury would be warranted in finding that the accused was in fault in creating the situation of danger, and the instruction is approved.
At the close of the state’s case the defendant moved the court to exclude from the consideration of the jury all the evidence bearing upon the controversy and trouble with Parker as prejudicial, tending to raise collateral issues, incompetent, and irrelevant in this case. The court denied the motion. This testimony was of the following nature: 'The accused, on the return from Kenosha and after the party left the interurban car for the boarding house, got into a quarrel with Parker in which the accused was the aggressor.
Other errors are assigned in the admission and exclusion •of evidence. We have carefully considered them, but they •are not, in our opinion, of sufficient importance to justify separate discussion. We find no error in the proceedings prejudicial to the accused, and the judgment of conviction must be affirmed.
By the Court. — Judgment affirmed.