150 Wis. 38 | Wis. | 1912
The accused was informed against for murder in the first degree, convicted of murder in the second degree, and sentenced to the state prison for a period of fifteen years.
In order to ascertain the legal sufficiency of these assignments of error we must refer to the evidence. The accused was a boy about fifteen or sixteen years of age, worked at section work on a railroad with Nick Alberico, a boy of his own age, Joseph Alberico, the father of Nick, and Salvator Ricon-sona. They lodged together and prepared their meals in a box car left on the west side of the railroad tracks and a little to the north of Drummond station. In this car were beds and cooking utensils. The car had a sliding door in the center on each side. The accused was accustomed to go out of the car after supper and remain out some time and return about 9 o’clock at night. The other occupants of the car, who usually locked the car door from the inside and retired early, were apparently dissatisfied with such conduct on the part of the accused, which interrupted their rest and required them to either leave the car door open when they retired to their beds for the night or get up and open the door to let the accused in on his return. On the night of the homicide Joseph informed the accused that he better come back before 9 o’clock because he, Joseph, would not keep the car door open until 11 or 12 o’clock every night. The accused made no answer but went away as usual, returned about half past 9, found the car door locked, shook it, and demanded of Joseph that he open the door. There is some conflict in the testimony as to what then took place. But it seems to us there was nothing more than an ordinary verbal quarrel and a threat on the part of Joseph to lock the accused out. Joseph was barefooted. The accused claims that Joseph kicked at him or kicked him and swore at him, but this is denied. Joseph, however, did lock him out
With reference to the errors assigned. The accused was in no wise prejudiced by the incorrect definition of manslaughter in the fourth degree. Under the definition given the court would permit the jury to reduce the homicide to manslaughter in the fourth degree, even though the killing was cruel or unusual or in the heat of passion. The accused was entitled to
Tbe statute (sec. 4354, Stats. 1898) defining tbe third degree of manslaughter is as follows:
“Any person who shall kill another in tbe beat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein tbe killing of another is herein declared to be justifiable or excusable, shall be deemed guilty of manslaughter in the third degree.”
There is no evidence in this case to bring the homicide in question within the third degree of manslaughter as thus defined. It is not sufficient proof of heat of passion for the accused to merely testify that he was exceedingly angry or passionate at the moment in question. Such testimony must be supplemented by proof of facts and circumstances showing such provocation as would ordinarily produce heat of passion. Ryan v. State, 115 Wis. 488, 92 N. W. 271; Johnson v. State, 129 Wis. 146, 108 N. W. 55. These circumstances are entirely wanting in the instant case. The quarrel which resulted in the homicide was a very ordinary dispute between a hardworking middle-aged man who desired rest at night after his day’s labor and a boy who was anxious for pleasure or excitement. Aside from locking him out of the car there was-nothing to indicate that Joseph or those with him intended any harm to accused or to put any great affront upon him. Petty disagreements of this kind cannot be settled with a rifle. Nor can a person in no personal danger and subjected to no extraordinary provocation have recourse to a lethal weapon and take human life and then mitigate the offense by his own statement of his causeless anger or passion. Besides, the accused went on the stand and testified that he shot by design, that is in the endeavor to shoot “past” Joseph and scare him. This is inconsistent with heat of passion. But it is absolutely
By the Gowrt. — Judgment of the circuit court is affirmed.