178 Wis. 461 | Wis. | 1922
No errors are formally assigned in the brief filed on behalf of the defendant, but from the argument we deduce the following assignments: First, that the court erred in rejecting testimony offered by the defendant to show that the amount of liquor consumed on the
(1) The defendant testified upon the trial and has claimed throughout the course of these proceedings that he was not intoxicated on the evening in question. The trial court permitted full inquiry into the amount of liquor consumed on the afternoon and evening of March 19th. Despite the claim of the defendant that he was not intoxicated, the jury were fully instructed as to the effect of the defense of drunkenness and what effect, if any, the voluntary acts of the defendant in the consumption of liquor in the hours preceding the injury might have upon their determination. It is very doubtful at least whether evidence such as was offered on behalf of the defendant would be material under any circumstances. Certainly, where there was no claim of drunkenness, that is, of such a degree of drunkenness as robbed the defendant of his powers of volition, the proposed evidence could have no materiality.
(2) It may be assumed that the presence of Mrs. Kenney in her helpless condition aroused in the minds of the jury those feelings that under such circumstances are common to mankind. However, it does not follow from that that her production upon the witness stand was improper or evidence given by her in court inadmissible. There is not in the entire case the slightest evidence of any passion or prejudice
(3) The argument of the defendant upon the third proposition is not at all times clear and it is difficult to determine what his precise claim is. It would seenj to require no argument to show that the act committed by the defendant, to wit, the driving of a large car at high speed down a much-traveled track, by a standing street car, without any regard for the presence of persons who were standing in the street about to board the car, was the commission of an act imminently dangerous to others. It is claimed, however, that it does not evince a depraved mirid regardless of human life within the meaning of sec. 4339, Stats.
We shall not enter into, a philosophical discussion as to the meaning of this phrase. It is the absence of “a premeditated design to take the life of another” that reduces a homicide, which would otherwise be murder in the first degree, to mui'der in the second degree. Hogan v. State, 36 Wis. 226, 249.
If an act be committed with a premeditated design to effect death it is murder in the first degree, but if it is merely imminently dangerous to others, evincing a depraved mind, regardless of human life and without premeditated design, it is murder in the second degree. It is the state of mind in which one takes the life of another without justification or excuse, but without premeditation, by an act imminently dangerous to others, regardless of human life,, that is designated as depraved.' The “depravity” referred to is present in murder in the first degree as well as in murder in the second degree. The statute does not mean that the mind of the slayer must be in other respects depraved. Hogan v. State, 36 Wis. 226, 245.
It would be difficult to find in' all that has been written upon the subject of homicide, as large as the mass of material is, a case which more distinctly illustrates every essential element of the crime of murder in the second
We do not know what extenuating circumstances, if any, there were in the conduct of the defendant. Certainly there is nothing in the record which in any way excuses or mitigates the heinousness of his offense. A group of innocent women and children, upon a public street, in a place where they were lawfully entitled to be, were run down and three of them killed, under circumstances which afford no excuse or justification. The defendant was charged with murder in the second degree and every element of that offense is clearly and indisputably established. As Mr. Justice Tim-lin remarked:
“The time is gone by, if it ever existed, when technicalities or unnecessary refinements can be allowed to stand in the way of the vindication of the law or the - punishment according to law- of those unquestionably and legally guilty of murder.” Carlone v. State, 150 Wis. 38, 136 N. W. 153.
(4) The remarks made by the district attorney were not excepted to upon the trial and we find nothing in them of a prejudicial character even if proper exception had been made. No language that the district attorney used or could use could exceed in vigor and force the condemnation which the defendant visited upon himself by his own acts. The acts are of a character which speak more loudly for them-' selves than mere words, however eloquent and forceful, can do. The defendant had a fair trial, the issues were submitted under full, complete, and carefully prepared instructions of the court, and we find no grounds for disturbing the judgment rendered upon the verdict.
By the Court. — Judgment affirmed.
