Montgomery v. State, 116 N.W. 876

Montgomery v. State

116 N.W. 876

Wis.

1908

Check Treatment

Lead Opinion

BashKOkd, J.

Thе motions and pleas interposed on behalf of the defendant challenging the sufficiency of the information and urging former jeopardy are fully met by the decision of this court on the first appeal. It was there held that the evidence adduced did not justify a verdict of premeditated murder, -and that there was error in refusing to give the instruction requested on behalf of the defendant that the jury might find from the evidencе that the defendant was guilty of manslaughter in the second or fourth degree. It was there held that upon this information and upon substantially the same evidence the jury might have found that the killing was done in heat of passion and not from premeditated design, although the defendant had testified that he was not made angry by the alleged confessions of the deceased. The action was remanded for a new trial upоn the same information and upon such evidence as might be brought forward to establish the guilt of the defendant and the degree of homicide if he should be again convicted. The trial court followed the rules of law laid down in that decision and the jury found the defendant guilty of manslaughter in the second degree. The particular objections raised to this judgment may therefore be regarded as res ad-judicóla and cannot, therеfore, require extended consideration. It is urged that the trial court, by withdrawing from the jury on the first trial all offenses other than murder in the first degree, acquitted the defendant of such charges. This was simply an erroneous instruction given by the court, *126and the defendant was not placed in jeopardy as to the minor offenses that were withdrawn from and which were not considered by the jury. Hoffman v. State, 91 Wis. 611, 73 N. W. 51; Perkins v. State, 78 Wis. 551, 47 N. W. 827.

The contention is made on behalf of thе defendant that the jury on the first trial, by its verdict of murder in the first degree, which involves a premeditated design, in effect acquitted the defendant of any offense in which heat of passion is an essential element, as in manslaughter; that premeditated design and heat of passion are inconsistent terms and cannot both exist at the same time. The last statement may be true in the abstract with respect to a mental state, but it cannot be applied as a rule of evidence. There may be a premeditated design to kill. There may be sudden provocation, and in the heat of passion the crime may be committed, and it is then for the jury to determine from the testimony the degree of homicide. This was the state of the record in State v. Johnson, 1 Ired. Law (23 N. C.) 354, 35 Am. Dec. 742, the leading case cited by defendant’s counsel. The court there sustained a verdict of murder, although it is clear from the opinion that a conviction of a less offense would have been approved. Under such circumstances one jury might believe that the offense was committed upon a premeditated design, and a second jury might believe from the same evidence that the crime was the result of sudden provocation and committed in the heat of passion. The authorities do not sustain the defendant’s contention that the conviction of murder necessarily negatives an element of the lower offense of manslaughter. The statements found in text-writers and adjudicated cases referred to by counsel with respect to former jeopardy can have but slight application under the statutes and decisions of this state. The words “premeditated design,” found in sec. 4338, Stats. (1898), defining murder in the first degree, signify merely an intent to kill. Sudden intent is not excluded. Hogan v. State, 36 Wis. 226; Cupps *127v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546. In Hogan v. State Chief Justiсe Blah enters into an able and exhaustive discussion of the common and statute law upon the subject, and places a construction upon this statute which now has the full approval of the court. He says (p. 244) :

“We take the 'premeditated design’ of our murder in the •first degree to be simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent, and need not be slow ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or last long. This very plainly appears, not only by the force of the words used, but also by the apparent use, throughout the definitions of murder and manslaughter, of the terms 'design’ and 'premeditated design’ to effect death as co-equal terms.”

Applying the language to the instant case, the jury on the first trial must have been convinced that the defendant had previously, or upon provocation arising at the time, formed a design to kill his wife. " If the evidence justified this conclusion he was guilty, of murder in the first degree. The jury on the second trial must have found that there was no design to effect death, but that in the heat of passion arising from the quarrel he killed his wife in a cruel and unusual manner, which supports the conviction of manslaughter in the second degree. This view is further supported by the discussion оf the subject found in the two opinions of Mr. Justice MARSHALL in Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546.

It is also contended that the decision of this court on the first appeal, that the evidence was not sufficient to sustain the verdict, acquitted the defendant of murder in the first degree. That rule was early discarded in this state. In re Keenan, 7 Wis. 695; Benedict v. State, 14 Wis. 423. This court in State v. Parish, 43 Wis. 395, in discussing the effect of a motion for a new trial, says (p. 401) :

“When a verdict of guilty in a criminal case is set aside, •all the proceedings on the triаl are necessarily set aside and vacated with the verdict. So when the verdict is set aside *128on motion of the accused, and be afterwards alleges that the’ trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved have been set aside and vacated at his request, and that he has thereby deрrived himself of the means of proving his allegation of jeopardy.”'

That rule, which is subject to the qualification indicated in the case cited below, applies to the objection urged as to-the legality of the last conviction. Birker v. State, 118 Wis. 108, 94 N. W. 643, holds that when the act for which the accused is indicted is the same act for which he is convicted, the conviction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the lower degree is proper, although the indictment contains averments constituting the offense of the-highest degree of the species of crime and omits to state the-particular offense and circumstances characterizing a lower-degree of the same crime. It is a familiar doctrine that upon indictment for murder in the first degree the defendant might in the first instance have been convicted of any lesser grade of homicide, because the less offense is included in the greater; but if upon the trial he is found guilty of manslaughter and that conviction is set aside, he cannot thereafter be convicted of murder in the first- degree. State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 120. We must hold, therefore, that there is no force in the objections urged against the procedure in this action.

Defendant’s counsel strongly insists, with much plausibility, that the trial court erred in excluding letters written by the deceased to the defendаnt immediately prior to the date of the criminal act and while she was engaged in teaching at Stowell. This is urged especially upon the ground that the-state had offered proof of the effect which defendant’s letters, which were not produced, had upon the deceased when received by her, tending to show the existence of trouble between them, while it is claimed that the letters written by her to him shоw strong affection and good feeling. Counsel for the state insist that the letters were confidential communications between husband and wife and were therefore not ad*129missible under sec. 4072, Stats. (1898) ; and, furthermore, that the offer of the same did not come within any of the recognized exceptions to the rule excluding privileged communications. We are not prepared to hold that, upon the trial of thе husband for the murder of the wife upon a premeditated design, letters received by him from her immediately prior to the commission of the crime are not admissible as showing the relations existing between the parties and as tending to elucidate the circumstances attending the act. The admissibility might rest upon the necessity of the case as tending to rebut thé criminal intent, but we do not consider it necessary to decide the question upon the record as here presented. We have been referred to no authority directly in point and have been able to find none. It becomes material, therefore, to consider the circumstances under which the letters were offered and excluded.

The deceased, while engaged in teaching school during the months of April and May, 1903, some distance from her home, wrote her husband several times and received at least two letters from him. Mrs. Belcher, with whom deceased boarded at the time her school closed, May 29th, as a witness for the state testified that the defendant came for his wife that day, and that she heard them quarreling during the night which preceded the day of her death. Upon cross-examination, in answer to a question from defendant’s counsel, this witness stated that thе deceased cried when she got letters from her husband. Counsel for defendant now insists that this answer was not responsive to the question propounded; but it is to be noted that no motion was made to strike it out. Upon redirect examination this witness testified, without objection, that the deceased cried when she got a letter from her husband. “Every letter she got she would come and tell me and she cried.” At such times “she wаs always downhearted and cried.” There was no motion made by defendant’s counsel to strike out this testimony.

*130It is now urged by defendant’s counsel that the jury might have inferred from this testimony that a state of unkindness and ill feeling existed between husband and wife which her letters to him might have had a tendency to overcome. Such letters might have indicated her feelings towards him and also might have had a tendency to show his state of mind towаrds her, and in that view might have been material if he had been convicted of murder in the first degree; but as the jury has found that the crime was not premeditated, but was committed in the heat of passion, the mental state of the accused at some time prior to the commission of the offense has ceased-to be of material consequence, and the rejection of the letters, if properly offered, cannot therefore be deemed prejudicial error. The testimony offered for the purpose stated was of the same nature as evidence of the defendant’s good character. The proof would therefore go to the intent of the defendant. The evidence of good character was held not mar terial in such a case. Hogan v. State, 36 Wis. 226. In the case cited the defendant was found guilty of murder in the second degree, the killing being perpetrated by an act imminently dangerous to others and evincing a depraved mind, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍regardless of human life, without any premeditated design to effect the death of the person killed. It is- said in the opinion, discussing the evidence of good character (p. 236) :

“The nature and qualities of the act producing death are to be found in the act and circumstаnces of its commission; and the good or bad character of the accused can have no possible bearing upon them.”

Moreover, a perusal of the letters, preserved in the record, shows that they throw no new or different light on the relations of the parties beyond that which the parol evidence disclosed ; hence their exclusion was not prejudicial.

The objection to the admission of the letter written by the deceased to the defendant prior to their marriage was properly sustained. It was too remote to have any material bear*131ing upon any of the issues fairly presented for tibie consideration of the jury on this trial.

The evidence upon the last trial was in all material respects the same as upon the first trial, evidence which this court has held was adequate to support a conviction of manslaughter but not a verdict of murder in the first degree. Nevertheless, with lawyer-like zeal for a client in distress, counsel for defendant insist that the proof is not sufficient to support the verdict of manslaughter in the second degree. The bald fact, stands admitted that the deceased, in usual health and spirits, left Warrens for her home in company with her husband, and within an hour thereafter сame to her death in a most violent and brutal manner. During that fateful period she saw no one and spoke to no one hut the accused and his daughter Nina. In the statement of facts the substance of the testimony of these two witnesses is given which in any manner tends to explain defendant’s conduct or to exonerate him from criminal responsibility for the death of this unfortunate woman who had a right to look to him fоr protection. It is also proper to say further, that there is no direct affirmative proof except that of the defendant and his daughter that would tend to acquit him of this awful crime. Two juries by their verdicts have declared, as they might properly, that this testimony is wholly unworthy of belief. Excluding this proof, but one conclusion results, and that is that the defendant, in the heat of passion, caused the death of his wife in a cruel and unusual manner, and was therefore guilty as found by the jury. The direct testimony in support of the verdict has not been referred to, and need not be further than to state that we consider it ample to sustain the verdict. In forbearing to discuss the evidence establishing his guilt we accord to the defendant the charity of silence.

By the Gowt. — Judgment affirmed.

Concurrence Opinion

Timxot, J.

I concur in the affirmance of the judgment of the court below. But, looking to the future, I think it well to spread upon tire record a more detailed exposition of the points necessarily decided with reference to the defense of former jeopardy.

The accused was, on his first trial, prosecuted upon an information charging murder in the first degree and found guilty of this crime. On this first trial the court refused to submit to the jury the question whether or not the accused was guilty of manslaughter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the second degreе or of manslaughter in the fourth degree, holding that there was no evidence which' warranted the submission of either of these two offenses to the jury. This was held to be error and the judgment of conviction reversed. Montgomery v. State, 128 Wis. 183, 107 N. W. 14. It was also decided by this court in the Report last mentioned that the evidence did not warrant a verdict of murder in the first degree. The cause was thereupon remanded for a new trial. The accusеd was then put upon trial on the same information upon which he had been previously tried. He pleaded his former jeopardy in bar of the prosecution, made other motions raising this question, and showed that at the first trial there was withdrawn from the jury by the trial court the offenses of manslaughter in the second and fourth degrees, and he set forth the decision by this court that the evidence was not sufficient to warrant а conviction of murder in the first degree. Demurrers to these pleas were sustained and exceptions taken. The accused was then tried and convicted of manslaughter in the second degree, and the cause comes to this court again. Counsel for the accused now contends: (1) That, the trial court having at the close of the first trial withdrawn from the jury the charges of manslaughter in the first and second degrees, this was an acquittal of these charges, or at least the accused had been in jeopardy thereon. (2) The verdict of *133murder in the first degree on the first trial was an express finding of the jury that no homicidal offense involving heat of passion was committed. (3) The decision of the supreme court that the evidence was not sufficient to sustain the verdict acquitted the accused of murder in the first degree.

The sum of counsel’s argument, oral and written, on these points is that the jury in the first trial, by finding the defendant guilty of murder in the first degree, acquitted him of all homicidal crime the necessary essentials of which were negatived by that verdict; that the supreme court relieved the accused of that finding, but could not place him in jeopardy again for the said offenses theretofore and after the jury was impaneled and sworn withdrawn from the consideration of the jury by the instructions of the trial court. Compare Schultz v. State (opinion filed May 8, 1908) 135 Wis. 644, 653, 657, 116 N. W. 259. The distinctions appear to be that here there was one act .charged in the information which by law stood as sufficient to charge seven different .offenses, either of which might have been committed by the act charged; there there was one act charged in the indictment as constituting two different offenses. Here there was an instruction to the jury against the objection of the accused to the effect that the evidence was insufficient to support a conviction of two of the seven offenses; there there was an instruction to the jury at the instance of, or at least without objection from, the accused, that the evidence was insufficient to support a conviction of one of the two offеnses^. It is suggested that there is another ground of distinction in that all homicidal offenses are included in murder, and that not all threats are included in threats to do injury to property ; and, as I wish to omit no point of distinction, I mention the suggestion, although it does not seem to me accurate or pertinent, nevertheless the judgment here is affirmed.

Concurrence Opinion

*134The following opinion was filed June 18, 1908:

Winslow, C. J.

(concurring). I fully agree with the result reached in this case, and wish simply to express in my оwn way what I conceive to he the grounds of the decision. The information charged the defendant with murder in the first degree. Under long-established and universal rules this charge included all lesser grades of homicide, and under it he could he lawfully convicted of any degree of murder or manslaughter which the evidence sufficiently proved. State v. Martin, 30 Wis. 216; Birker v. State, 118 Wis. 108, 94 N. W. 643; 1 Bishop, New Crim. Law, § 797. Had he been acquitted of murder in the first degree, and convictеd of any of the lesser degrees of homicide upon his first trial, he could not thereafter have been again tried for murder in the first degree, even had a new trial been granted upon his own motion, because by such motion he only asked for and obtained a new trial of the charge of which he was convicted, and hence did not waive his constitutional protection against a second prosecution for the crime of which he was acquitted. State v. Martin, supra. But this was not the situation. The defendant was convicted on the first trial of murder in the first degree. When he prosecuted his writ of error from the judgment upon that conviction and obtained a reversal and a new trial, the case went back for retrial on the charge of murder in the first degree, which included all homicides of a lesser degree just as it did upon his first trial. He had by his own аct in applying for a new trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍waived his constitutional protection against a second trial for murder in the first degree, and necessarily waived his right to object to a new trial for any of the lesser degrees included within the charge of murder in the first degree, as to which charge he had thus consented that he might be again put in jeopardy. This is not a case where two separate crimes, neither of which is inсluded within the other, are charged in the *135same information, as was the case of Schultz v. State, 135 Wis. 644, 114 N. W. 506, 116 N. W. 259. In that case the court by instructions took from the jury the consideration of one of the separate offenses charged, and a verdict of guilty was rendered, which, under the instructions, this court held must he construed as meaning guilty of the other offense only. A writ of error was prosecuted by the defendant, and it was held to be addressed only to the offense of which he was cоnvicted and not to the one of which he was not convicted, and hence that he had not waived his defense of former jeopardy as to the last-named offense. The distinction between that situation and the present seems to me so manifest as not to call for further' elucidation. So it seems to me clear that upon the second trial the defendant might rightly be convicted of any degree of homicide which, the evidence sufficiently proved.

As to the letters which were written by the wife to the defendant shortly before the homicide, I regard the question of their admissibility as one involved in much doubt; but, if admissible at all, it was only because they tended to show the state of feeling between the parties. If admissible for this purpose their exclusion was not prejudicial, because it appears upon examination of them that they tended to prove simply the same state of feeling which was abundantly proven by the parol testimony.