151 Wis. 495 | Wis. | 1913
The plaintiff in error, hereinafter called the defendant, was convicted under sec. 4399, Stats. (1898), of burning the dwelling house of Henry Detjen in the nighttime when there were human beings therein, and was sentenced to ten years’ imprisonment at Waupun.
A number of exceptions to the rulings of the court upon the trial are urged as grounds for reversal of the judgment, but it must be sufficient to say that we have found no serious or prejudicial error in any of the rulings complained of, and that if there were nó other questions in the case the judgment would be at once affirmed.
The important question in the case, and one to which we have devoted careful attention, is the question whether there was sufficient evidence to sustain a verdict of guilt. As has been previously said by this court, the prisoner has the right not only to the solemn judgment of the trial court on the question whether his guilt was sufficiently proven, but upon writ of error he has the right to demand the deliberate opinion and judgment of this court upon the same question. Lonergan v. State, 111 Wis. 453, 87 N. W. 455. After diligent study of the record before us, we have come to the con-
Tbe fire in question occurred at about 2 o’clock a, m. October 14, 1911. Tbe building burned was a frame building, consisting of a country saloon, dance ball, grocery store, and dwelling bouse combined, which was kept and owned by one Henry Detjen, a man sixty-four years of age, and occupied by himself and bis family as a dwelling bouse. Tbe building was situated on tbe northeast corner of tbe crossing of two country roads in tbe county of Manitowoc, about five miles south of tbe city of that name. One of tbe roads ran due north and south and tbe other due east and west.
Detjen bad bought tbe forty-acre farm on tbe corner of which tbe building was situated in 1903 for $6,000. He bad erected some additional barn buildings thereon. Tbe burned building was erected in 1900 at a cost of about $4,500', contained property of tbe estimated value of $1,500, and was insured for $2,900.
Tbe defendant was an unmarried German, twenty-seven years of age at tbe time of tbe trial, i. e. in February, 1912. He came to tbis country six years before tbe trial of tbe case, and came directly to Neillsville, Wisconsin, where for about five years be worked at bis business or trade, which was that of a stone mason, sometimes going to work in tbe woods in tbe winter. Five representative business men of Neills-ville were put on tbe stand, and testified to tbe good character and reputation of tbe defendant during tbis period. It also appears that be was thrifty and made some accumulation of property. In August, 1911, be came to Manitowoc county to the vicinity of tbe burned building to make investigation (as be says) concerning tbe worth of a second mortgage on property in that vicinity, which mortgage be bad taken on tbe sale of property at Merrillan Junction. At tbis time be
There is no evidence of any ill-feeling between Detjen and the defendant at any time prior to October 8th, — in fact it appeared that the defendant bought his groceries, or -a part of them, at Detjen’s store. On the morning of October 8,. 1911, at about 6 o’clock, as Detjen came out of his house in the morning he discovered a small fire burning on the outside at the northwest comer of his house, and smelled kerosene.
There was testimony to the effect that the ground was saturated with kerosene at the place where the fire started and fire was seen burning on the ground in spots running from the northwest corner of the burned building about halfway across the road toward the unused blacksmith shop owned by the defendant, but there was no proof that there were any traces of oil in the blacksmith shop nor that any oil had ever been in the building.
It was shown that-the attempt to burn the house on October 8th caused considerable talle in the neighborhood, that the defendant on the day before the second fire said to one of the neighbors who was in his place that they (the Detjens) “ought to watch,- — it is just a week ago now, that son-of-a-gun might come around again.”
It was also shown that the defendant stated to another neighbor some time before the fire that the business was going slow, that if there was only one saloon it would be better, and that he wasn’t satisfied that he had made $50 since he had been there. It was also shown that he called on a brewing company in Manitowoc about the 1st of October and
There was testimony to the effect that one evening after the first fire the defendant came into Detjen’s saloon and told Detjen that his (Detjen’s) wife had been talking with another woman outside and that she had said to the other woman that the fire came from his ( Gerlce’s) side of the road; and that she must take that back; that Detjen then called his-wife and she explained that she was talking with a Mrs. Repke about the fire; and in reply to a remark by Mrs. Repke to the effect that it was funny that that man should light that,, and that other man that is here before he is gone, that’s funny whoever could have done it, she replied, “Well, we can’t tell, because we haven’t seen it, — we don’t know.” After this explanation Gerlce appears to have been satisfied, bought a glass of beer and went home.
It is believed that the foregoing statement comprises all of the significant facts tending in any way to inculpate the defendant.
It appeared that there was no insurance ever taken out by the defendant on his building, but that the mortgagees had $2,500 of insurance on the building, of which defendant was informed, and there is some claim by the state the defendant thought that this insurance was for his benefit, but this seems not very well substantiated. There were fifteen gallons of oil found in the barrel in defendant’s basement after the fire. No oil had been bought by him since he started business with something less than fifty gallons, but the testimony seems ample to account for the missing amount by the use thereof in the lamps in the saloon, the dance hall (where two dances had been held), and the kerosene stove which he used daily to-cook his meals. No smell of kerosene was found on the defendant’s clothes, and no pails or receptacles were found in
In the state’s brief the following facts are claimed to be clearly established, and also to justify the conclusion that the defendant fired the building, namely: that the fire was deliberately set by some person with kerosene oil and kindling wood; that the defendant’s building was not injured; that the parties were rivals in business and that it was generally known that both saloons could not pay, and that defendant was not making a success of the business; that he was deeply in debt, thought he had $2,500 insurance, stated that the business was slow and that if there was only one saloon it would be better, and tried to sell the property without avail; that he was conducting a saloon without license under a subterfuge agreement made to evade the excise law; that he was the sole occupant of his premises, had kerosene and kindling therein, and that the kerosene used in the fire came from the direction of his unused blacksmith shop; that on the previous day he said that Detjen had better watch out, as it was just a week since the first fire and the same person might come back to complete the job; that defendant was dressed and outside his building near the time of the starting of both fir.es; that he offered no aid, but was very solicitous about protecting his own property and that of others which was in no danger; and lastly, that the defendant did not definitely deny his guilt when the sheriff charged him with it.
It will be seen at once that there is not one item of direct
By the Oouri. — Judgment reversed, and action remanded for a new trial. The warden of the state prison will deliver the plaintiff in error into the custody of the sheriff of Mani-towoc county, who will hold him in custody to await the further order of the court.