84 Wis. 152 | Wis. | 1893
On January 3, 1891, the plaintiff in error, Michael Doherty, who was a duly elected and legally qualified policeman of the city of Fond du Lac, having all the powers and authority of a constable to serve civil process, received from a justice of the peace for service a valid civil warrant for the arrest of Michael Cahill. Having had
The theory of the state is that the first shot produced the wound which caused the death of Cahill. Cahill made a dying declaration, in which he -stated that Doherty shot
The theory and claim of the defense are that a third shot was fired, as above stated, and that it was the fatal shot.
The circuit judge instructed the jury, in substance, that the evidence warranted a conviction of manslaughter in the fourth degree. The error assigned on this instruction is the only one we find it necessary to consider in the case. That degree of manslaughter is thus defined in the Revised Statutes: “ Sec. 4362. The involuntary killing of another, by any weapon or by any means, neither cruel or unusual, in the heat of passion, in any cases other than such as are herein declared to be justifiable or excusable homicide, shall be deemed manslaughter in the fourth degree. Sec. 4363. Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.” The question to be determined is whether the testimony in the case is sufficient to support a conviction under either of those sections.
It has already been stated that no one claims that Cahill was wounded by the second shot. The testimony is very convincing that, had he been wounded by the first shot, he could not have participated in the severe struggle which he had with Doherty after that shot was fired. Indeed, the reasonable probabilities against the theory of the state are so strong that, in disposing of the motions in arrest of judgment and for a new trial, the learned circuit judge said: “If the sole ground of conviction rests upon the
Such being the case, the evidence is conclusive that the killing of Cahill was not involuntary, for Doherty pointed his revolver to a vital part of Cahill’s body, and fired the same, with the intention, at least, of disabling him; and, on the principle that a man is presumed to intend the natural and ordinary consequences of his act, he fired the shot with the intention to kill Cahill. In order to sustain a conviction for manslaughter in the fourth degree, under sec. 4362, the killing must be involuntary. It is impossible, therefore, to sustain this conviction under that section. A conviction of that degree of manslaughter, under sec. 4363, cannot be upheld if it appears in proof that the accused is guilty of some other degree of the crime. It is conclusively proved that, when Cahill was shot, he was engaged in resisting service upon him of legal process by an officer legally authorized to make such service. He was therefore attempting to commit an unlawful act, and Doherty shot him while resisting such attempt. In doing so, Doh-erty was guilty of no crime unless he shot Cahill unnecessarily. If he shot him unnecessarily, Doherty was guilty of manslaughter in the second degree, under sec. 4351, R. S-, which provides that “ any person who shall unnecessarily kill another while resisting an attempt by such other person to commit any felony or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.” Such being
By the Court.— The judgment of the circuit court, is reversed, and the cause remanded for a new trial.