Loew v. State

| Wis. | May 15, 1884

Lyon, L

1. The instruction proposed on behalf of the plaintiff in error, which the court refused to give, was properly refused. It called for a.direction to the jury to acquit the accused, because there was no proof that the deceased died from the effects of the wound which he received upon being thrown out of -the house. From the foregoing statement of facts we think it is conclusively proved that his death was caused by the wound in his head. True, no expert testimony on the subject was given, but all the facts show that his death must have been caused thereby. A man apparently physically sound receives a blow upon his head which crushes in his skull, and leaves him helpless and insensible. Tie remains in a comatose condition three fourths of an hour, and then dies. Here we have an adequate cause of death, and no other is suggested. The conclusion is irresistible that he- died of the injury. This is all that the learned judge assumed in his general charge, and gander the testimony the assumption is not error.

2. Neither was it error to permit the jury to examine the statutes relating to manslaughter. The court had already read to the jury the portions of those statutes which were deemed applicable to the case, and had given them in the charge, but the result would have been the same had this not been done. The charge of the bourt to the jury in any case, civil or criminal, if correct, is but a statement of the law of the case. This court’ has held that it is not error to permit the jury to take to their room the written charge of the court. Wood v. Aldrich, 25 Wis., 695" court="Wis." date_filed="1870-01-15" href="https://app.midpage.ai/document/wood-v-aldrich-6600435?utm_source=webapp" opinion_id="6600435">25 Wis., 695. The ground of that decision is that, by having the opportunity to examine the charge for themselves, “ they would know more thoroughly its precise terms than they could if compelled to trust entirely to recollection after hearing it read once.” The same reason applies for allowing, the jury to examine for themselves the statutes containing the law of the case.

3. At the instigation of the accused, the court refused to receive the first verdict, which convicted him of manslaughter in the first degree, and sent the jury out to find another verdict. Whether such procedure was regular or irregular, we need not here determine. If irregular, the accused cannot take advantage of it, for the procedure was had at his request,- and against the protest of the prosecuting attorne}7. It is the same as though, on the coming in of a verdict in any case, the parties should stipulate that the verdict be not received, but that the same jury should find another verdict on the testimony already in. We perceive no valid objection to such a stipulation, and think neither party could after-wards be heard to maintain that the last verdict was void or irregular merely because a different verdict had previ- 9 ously been returned. In this case, the objection of the defendant to receiving the first verdict, and his irnplied'con-sent that the jury should return another verdict, amount to such a stipulation on his part, to which the prosecution was compulsorily made a party by the ruling of the court sus-, taining the objection of the defendant.

4. Sec. 4351, R. S., enacts that “any person who shall unnecessarily kill another, either 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.” The court instructed the jury, as proposed by the accused, that “ the facts and circumstances in evidence here will not warrant the conviction of the defendant of manslaughter in the second degree.” This instruction was too favorable to the accused. The testimony tended to show that the deceased was attempting, and had already commenced, to do an act which was a breach of the peace; that in resisting it the accused used more force and violence than was necessary to that end; and that the death of the deceased resulted therefrom. There was testimony, therefore, sufficient to sustain the conviction for manslaughter in the second degree. The trial judge came to the same conclusion when he denied the motion for a new trial, for that was necessarily an adjudication that the verdict was sustained by the evidence.

' We shall not enter upon a discussion of the relative powers and functions of judge and jury in criminal cases, regarding the determination of questions of law, or attempt to state the limits, or define the powers and duties, of either judge or jury in .respect thereto. This is a subject upon which much has been written, and regarding which there is much conflict of opinion in the books. It is sufficient to say here that we are cognizant of no case in which a judgment of conviction has been reversed merely because the.verdict was contrary to the charge of the court, where such charge was an erroneous statement of the law and the verdict was one which should or might properly have been rendered had the court given the law in charge correctly. Neither are we aware of any rule of law against upholding such a verdict, notwithstanding.the erroneous adverse charge.

By the Court.— The judgment of the municipal courtis .affirmed.