71 Wis. 612 | Wis. | 1888
It is undisputed that the deceased was a boy of about fifteen years of age, and came to his death by a bullet fired from a revolver in the hands of the accused. The accused was at the time about twenty-eight years of age, had separated from her husband, and was in the employ of one Davis as housekeeper. She had a child about three years of age. The house where she lived was a two-story frame building. It was situated near the depot in Appleton, and came up to the sidewalk. The upper part of it was occupied by Davis. From the front door of the house a stairway led directly to the upper part of the house. About Y o’clock in the evening the deceased, his elder brother, and a boy of Davis, about eight year's of age, walked from the depot to the front door of the house near the foot of the stairway,. when a conversation took place between one or more of them and some person upstairs in the house. Thereupon the accused fired the fatal shot from the head of the stairway, and killed the deceased. There was do light in the house at the time, and it was dark outside.
There can be no question but what the information for
Here the exceptions are confined to the charge of the trial court to the jury, It certainly was not error prejudicial to the accused for the court to state to the jury, in effect, that it was conceded by the prosecution that there was doubt as to the sufficiency of the proof of deliberation and premeditation to sustain a verdict of murder in the first degree, and hence they were not asking for such a verdict, but claimed and insisted that the evidence was sufficient to warrant a verdict of murder in the second degree. Suck charge, manifestly, was designed to prevent a verdict for the higher offense not sustainable by the evidence.
Nor was there any error in reading sec. 4339, R. S., and then stating, in effect, the statutory definition of murder in the second degree as being plain, simple, and easily intelligible, and as well understood by them as any lawyer; that it was so plain, simple, and concise as not to admit of construction; that it was simply a question for them to determine whether or not the facts proved, if any, came within such definition.
The jury were, in effect, told that no premeditated design or malice aforethought was necessary to constitute murder in the second degree, but that if there was a killing, and it was perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of
It appears from the record that the accused was ably defended by counsel in the trial court, and -with commendable fidelity to his client the same counsel has sought to make every objection available in this court. But after a careful examination of the whole record we are forced to the conclusion, not only that the verdict is sustained by the evidence, but that there is no material error in the record.
By the Court.— The judgment of the circuit court is affirmed.