Lonergan v. State

111 Wis. 453 | Wis. | 1901

WiNslow, J.

In criminal cases, and especially in a prosecution for a capital offense, the defendant has a clear right to have his guilt determined by the court as well as by the jury. “If the verdict does not satisfy the conscience of the judge, the prisoner is entitled to a new trial.” The accused has the right to have “ the solemn opinion of the judge who tried the cause, after a careful hearing of all that may be alleged against its justice, that it ought to stand.” Ohms v. State, 49 Wis. 415. Not only has he this right to the solemn judgment of the trial judge, but he has also the right upon writ of error, if the question is properly presented by the record, to demand the deliberate opinion and judgment of this court upon the question whether his guilt was sufficiently proven.

■ Bearing these principles in mind, we have given the evidence very careful consideration, and, after giving to the verdict and the decision of the trial judge all the weight to which they are entitled, we are forced to the conclusion that the guilt of the defendant was not sufficiently proven.

The first serious difficulty is in the matter of the identification of the accused. The assault was committed upon Seitz after dark, upon a stormy evening. No one did or could distinguish the features of the men who made the assault. They immediately fled, and were seen by other witnesses while running away. No one saw the shooting of Prinslow. One witness, named Eockow, saw the three men who assaulted Seitz a few minutes before the assault, standing on the steps of the Chicago, Milwaukee & St. Paul depot, and saw them again running away after the assault. When confronted with the plaintiff in error upon the trial, he testified that he resembled one of the robbers “ quite a lot,” and upon cross-examination that he resembled him “ quite a little.” This testimony is really the only testimony which approaches identification of the defendant as one of the robbers. It is plain that such testimony is quite weak on which to base a conviction of murder.

But this is not the most serious difficulty in the case. The fact is that the testimony Shows it to have been almost, if not quite, a physical impossibility for the defendant to have been at the place of the shooting and also to have been upon the freight train where he was found by the brakeman. If not an impossibility, at least the unquestioned facts are such that a most serious doubt is thrown upon the claim that he could have been in both places.

The freight train was on the Chicago & Northwestern Eailway going south. It left the city depot at 6:25 p. m. This is shown by the entries in the depot record, made by the clerk whose duty it was to keep the record of the departures of trains. This depot was nearly a quarter of a mile west of the scene of the shooting. This train passed the tower house, which is at the junction of the Chicago & Northwestern and Chicago, Milwaukee & St. Paul Eailways, at 6:30 p. m. This is shown by the record kept by the operator at that place in the course of his duty, as well as by the oral testimony of the operator himself. The train did not stop at the tower house, but went right on south. This tower house is nearly half a mile south of tbe Chic¿go & Northwestern depot, and nearly, if not quite, half a mile southwest of the place of the shooting. When this train reached a point not' less than one mile, and probably nearly two miles, south of the tower house, the accused was found on top of the train, lying down on the fourth or fifth car from the engine. The train was a heavy one and drawn by two engines. All of these facts are undisputed,, and in fact were proven by the state. The testimony of the witnesses produced by the state makes it almost a certainty that the shooting took place after 6:80 p. m. The witness Seitz, who was assaulted, places the time of the assault at about 6:30, and the shooting at a few minutes later. Stein barth, who was talking with Seitz at the time of the assault, places the time at about 6:80. Rockow, the witness before mentioned, says it was between 6:30 and 6:35 when he saw the men at the depot before the assault, and testified that he looked at his watch at the time. Frank Nolan, a policeman, who first reached the scene of the shooting, heard the shots, and testified that they were fired at about 6:40 o’clock. He was in the police station, less than a block away, when they were fired. The only witness in the whole case who placed the shooting before 6:30 was one Race, sixteen years of age, who testified that he thought it was ■about 6:20; but it does not appear that he had any means of knowledge, and he admits that he might have said that it was “around 6:30” on the preliminary examination.

When we come to the witnesses of the defense, however, ' all doubt seems to be removed, if any existed before, upon the question as to whether the shooting took place before or after 6:30 o’clock. The witness Ilaberkorn, who was the operator in charge of the tower house, testifies that he left the tower at 6:32 o’clock; that he looked at the clock as he left; that, the train had then passed south; that he went north about four blocks, and then heard the shots fired. This witness is unimpeached, and apparently disinterested and reliable. The witness Halpin was a livery man, driving a bus on the night in question. A train was due at the Wisconsin Central station, about four blocks west of the Chicago, Milwaukee & St. Paul station, at 6:30 p. m., and another one at the St. Paul station at 6:50 p. m. He desired to make both trains, and he testifies that he left the Central station after the arrival of the Central train, and drove over to the St. Paul station, and just as he was backing up to the platform he heard the first shot, and about two or three minutes afterwards he heard three other shots, and that it was about 6:45 when he heard the final shots. This witness also seems to be unimpeached and disinterested. Both of these witnesses have data on which to rest their opinions as to time concerning which there can be little room for doubt. It seems to us that the overwhelming preponderance of the evidence fixes the time of the tragedy at a time not earlier than 6:35, and probably very near to 6:45 o’clock. A verdict that it occurred prior to 6:35 would be set aside as against the weight of the evidence.

Here, then, is the dilemma: The shooting took place between 6:35 and 6:45 o’clock. The train upon which the alleged assassin was found about 6:45 o’clock was then probably two miles from the scene of the' shooting. It had passed the tower house, about half a mile from the place of the shooting, at 6:30 o’clock, and had not stopped. How is it possible that the accused, in his drunken condition, could have got to that train after the shots were fired ? It will not do to say that probably the train was a long one, and that the record of the operator at the tower house means only that the engine had passed, and that the back end of the train may have been half a mile to the rear. The testimony fails to show how long the train was, and the record and testimony of the tower-house operator are that the train passed at 6:30, that he left the house at 6:32, and that the train had passed at that time. In the face of this uncon-tradicted and apparently truthful testimony, which fixes the position of the train on which the accused was found at a place where it would have been impossible for him to reach it after the shooting, we cannot approve a verdict which not only says that it was possible, but that he did so beyond a reasonable doubt.

The accused seems to have been a tramp, not a useful or desirable member of society, and doubtless this fact weighed strongly against him in the trial court; but the law throws the same safeguards around him when accused of crime that it does around the most respected citizen. One of those-safeguards is that his guilt must be proven beyond a reasonable doubt. In this case suspicion seems to us to have in large degree taken the place of proof. Other evidence may, perhaps, be adduced upon another trial which will explain or avoid the difficulties which stand in the way of a verdict of guilty upon this record, but we cannot speculate upon the possibility of there being such evidence now. Upon the record as it stands, the jury was not justified in finding the accused guilty.

In the view we have taken of the case, we do not find it necessary to discuss the minor questions raised.

By the Court.— Judgment reversed, and action remanded-for a new trial. The warden of the state prison is directed to deliver the plaintiff in error to the sheriff of Fond du Lac county, who is directed to keep the said Lonergan in his custody until discharged therefrom, or until otherwise ordered according to law.