153 Wis. 455 | Wis. | 1913
The evidence established, or tended to establish, these facts: July 5, 1911, the accused, Antonio Imp
On the case thus made, by a permissible view of the evidence, the theory of the state was that the accused conspired to escape from custody, thinking that Radeliffe had no right to detain them without a warrant, and to use their weapons to that end with fatal effect, if necessary, and that when Impeño commenced shooting, BobeHi knew his purpose and interfered with the efforts of Radcliffe’s assistants to protect him in order to aid in executing such purpose, which included, as indicated, killing Radeliffe, if necessary to effect the escape.
It does not seem advisable to refer, in detail, to the multitude of errors assigned on behalf of plaintiffs in error. The great majority are submitted without argument. In that manner substantially the whole of a quite lengthy charge is divided up into sections and we are asked to review and pass upon it. In general, an assignment of error which is not deemed by counsel to be of sufficient importance to warrant
We have examined the alleged errors submitted with argument, as well as those submitted without argument, sufficiently to discover that there is no efficient merit in them and little which calls for discussion to support the conclusion to which we have arrived. Nothing is advanced in the printed, and nothing was on the oral, argument constituting any justification for the homicide. There was ample evidence to warrant the jury in deciding that the accused knew the deceased was acting officially in taking them into custody. So if the sheriff did not act, technically, within his rights, that gave the accused no justification or excuse whatever for the homicide.
Complaint is made because the jury were instructed not to convict Roberti of any lesser offense than Imperio. Reliance is placed upon Miller v. State, 139 Wis. 57, 119 N. W. 850. The principle of that case does not have any application to the facts here. .The evidence, now, indicates, without room for fair controversy, that the two men acted in concert from before the first shot was fired and that Boberti must have known Imperious purpose and aided in effecting it. Under the circumstances, it was immaterial who handled the weapon which did the mischief. One was, necessarily, as guilty as the other.
The principal argument on the merits of the case is in support of a claim that the- evidence did not warrant finding Boberti guilty of murder in the first degree. On that, it does not seem to he appreciated, that, if there was any evidence warranting submission of the question to the jury, there is enough to support the finding on appeal. Such matter cannot turn on a mere preponderance of the evidence. The jury had a right to reject the story of the accused persons and believe that of the survivors of the encounter. Accepting the verdict, as we must, as to the truthfulness of the testimony -of such survivors, the substance of which appears in the statement, there is no reasonable explanation of Imperious conduct
Complaint is made because the trial court refused to grant a new trial as to Boherti upon the affidavits of some jurors impeaching their verdict. That assignment of error is ruled in favor of defendant in error by the familiar principle that affidavits of jurors, except as to matters outside the jury room or some mistake in framing the verdict so as to report what was agreed upon, cannot he used as a basis for setting the verdict aside. Only within quite narrow limits can a juror impair his verdict by affidavit or anything he may say or do after having been discharged from the case. Under no circumstances can he be permitted to efficiently contradict it, as was attempted in this case, by confessing that he appreciated the effect thereof as rendered but did not, when he agreed thereto, believe it was right. Hempton v. State, 111 Wis. 127, 86 N. W. 596; Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054. An affidavit to the effect that the verdict as reported is not as agreed upon and an affidavit directly impeaching the verdict, as that the juror united in delivering a particular verdict, but did so contrary to his best judgment, are quite different. The latter is not permissible. Butteris v. Mifflin & L. M. Co. 133 Wis. 343, 113 N. W. 642.
There does not seem to be any other matter mentioned by counsel for plaintiffs- in error requiring special mention. As before"-indicated, notwithstanding many matters, suggested, might properly have been passed without attention because of their being a mere claim of error, on account of the importance of the case and the earnestness of its presentation for plaintiffs in error on the oral argument, we have examined all the complaints sufficiently to discover whether there is any real merit therein which could form a legitimate basis for disturbing the judgment as to either of the accused, and do not find any.
By the Court. — The judgment is affirmed.