165 Wis. 377 | Wis. | 1917
We have thoroughly reviewed the evidence and given careful consideration to the errors assigned, but have found no reason for reversing the judgment. Exasperating and senseless as such a disturbance is, the use of firearms cannot be justified except where personal violence is threatened and it seems to be necessary for self-defense. The jury have negatived any such situation here.
The errors assigned will be briefly considered. The statement made by the trial judge as to the testimony of the witness Buss is an entirely correct statement It is true that the witness admitted that he could not distinguish the form of the defendant from that of the son, but as the witness was at some distance and the time was after 9 o’clock in the even
As to tbe other instructions, tbe only serious objection is that they submit to tbe jury tbe question of self-defense when no evidence had been offered on that subject. Eggett v. Allen, 106 Wis., 633, 82 N. W. 556.
It is true that tbe defendant himself denied tbe act, but two witnesses called by the state testified that be admitted tbe act to them and excused it on tbe ground that tbe boys shot bullets into tbe shed and nearly killed bis daughter who was standing beside him. There was also considerable testimony introduced by tbe defendant as to tbe state of terror into wbicb bis wife and daughter were thrown. -It was quite possible under tbe testimony for tbe jury to disbelieve tbe defendant’s story and yet find that be shot in lawful self-defense, and tbe judge in submitting that question to tbe jury did him a kindness rather than an injury. If there was any error (wbicb we do not intimate or decide) it was an error against tbe state rather than against tbe defendant.
The provocation under wbicb the defendant acted was certainly great. Apparently be was a respectable citizen who bad lived a law-abiding and useful life for years upon bis own farm. He was no tramp or ordinary criminal. He was at bis home surrounded by bis family, engaged in a peaceful and commendable occupation, when tbis pandemonium of noise broke loose. It must have been to tbe last degree exasperating. While it did not justify shooting and hence does not permit us to reverse tbis judgment, we deem it proper to say it may well be considered by tbe executive upon an application for pardon. If tbis court bad tbe pardoning power we feel tbe circumstances here presented would malee a strong .appeal to us for its exercise.
By the Oourt. — Judgment affirmed.
On June 16, 1917, the Governor commuted defendant’s sentence to thirty days in the county jail. — Rep.