184 Wis. 50 | Wis. | 1924
From a consideration of the questions presented upon the review of the case we have concluded that there must be a new trial (1) because the court erroneously instructed the jury that the deceased came to his death by gunshot wounds inflicted by one or both of the defendants; (2) because the court erroneously admitted in evidence confessions of the defendants made at the police station on the evening of the homicide, which error was not cured by their withdrawal with instructions to disregard them; and (3) because the court erroneously submitted to the jury the question of whether or not the confessions made next morning and later were voluntary.
Since there must be a new trial in which most of the evidence will presumably be substantially the same, we purposely forbear to set out the evidence more than is essential to understand the questions decided.
Arville and Oliver Jones were twenty-three and twenty-one years of age respectively, born and raised upon a farm in Missouri. It seems that previous to the day of the shooting they had gone to the Northern woods for work, but not liking the work they were returning therefrom, and came into the railroad yards of North Fond du Lac about 12:30 on the morning of October 2, 1923, in an iron gon
Defendants’ counsel argue that it was a question for the jury as to who inflicted tire fatal wound on Jacobs — the officers or Arville Jones. There is a conflict in the evidence as to the order or sequence of shooting and there is sufficient doubt as to who fired the fatal shot to leave that question to the jury. All the revolvers used by the officers and defendants were thirty-two caliber. There is no testimony to show that the wounds in the head — the only fatal ones— were probed to recover the bullets or to show the direction of the shots. Under the evidence, giving it one construction, it is possible that the fatal bullet was fired by one of the officers. The court, therefore, upon the competent evidence in the case, erred in saying to the jury, “It is undisputed that one or the other or both of the defendants shot to death Elno Jacobs.” Upon the new trial, under the same or similar evidence, the question as to whether either or both of the defendants fired the fatal shot should be left to the jury.
After Jacobs was shot the defendants surrendered and were taken to the police station. Oliver was suffering from the gunshot wound in his face and was taken to the hospital for dressing and then taken back to the police station. F. H. Slivenick, a special agent of the railroad, was notified by Captain Cale that Jacobs was killed, and came to the police station where the defendants were. Without stating what occurred in detail, it is evident that Mr. Slivenick mal
As to admissions made before the district attorney, the court instructed the jury that if they found they were made voluntarily they could consider them, but if they found the confessions were made under duress they should disregard them. Our judgment is that, in view of the fact that the confessions were made so soon after those in the police station and were made in the presence of Slivenick, who had inflicted physical punishment upon' the defendants only a short time before, they were not admissible in evidence. In so ruling we are not unmindful of the fact that the district attorney informed the defendants of their constitutional
When a defendant is in the custody of the law he should be dealt with according to the sanctions of law. There is no sanction of law in this state, and there will be none so long as courts endure, that tolerates the methods of the inquisition or of the prize-fighting ring. Our criminal procedure is founded upon principles of humanity, not upon extortion or brutality, and it is complete enough to protect society Without resort to .inhuman or barbaric methods. This subject was touched upon in Bianchi v. State, 169 Wis. 75, 171 N. W. 639, and fully discussed in Lang v. State, 178 Wis. 114, 189 N. W. 558, and it needs no further treatment now.
The claim that Arville Jones had no preliminary examination upon the charge of assault with intent to murder is not well taken. He had a preliminary examination upon the transactions out of which such charge arose, and that is sufficient. Sec. 4653, Stats., permits an information to be filed for an offense different from the charge in the complaint upon which the warrant issued. Bianchi v. State, 169 Wis. 75, 171 N. W. 639; O’Keefe v. State, 177 Wis. 64, 187 N. W. 656.
By the Court. — Judgment reversed, and cause remanded for a new trial. The warden of the state prison will deliver the defendants to the sheriff of Fond du Lac county, who will hold them in custody till discharged by due process of law.