152 Wis. 503 | Wis. | 1913
These facts appear from the evidence without dispute: The accused, a man about fifty years of age at the time of the homicide, resided on a farm. An old lady, a relative of his deceased wife, was his housekeeper. John Eoliand, whom the accused had known for several years, resided with him. Eoliand was of a somewhat quarrelsome disposition. Two years before the homicide, without provocation, but from the natural depravity of his nature, he struck the accused with a pipe wrench in the latter’s own house, who was only saved from serious injury by timely interference of a neighbor who happened to be present. At times Eoliand was agreeable and at others, without, any considerable provocation, he was quarrelsome and liable, - in case of being opposed, even by words, to strike any one who might, for the moment, be the object of his ill will. The accused was so afraid of Eoliand that when the latter was out of temper the former was careful not to do anything to provoke him. The accused kept a revolver in the house. It customarily lay, loaded, on a shelf where Eoliand could possess himself of it. He did that on one occasion and discharged all loads but one. When asked why he kept that, he suggested it would be handy to use on the accused. On the occasion in question the two men, the old lady, and one Gallagher were present at the home of the accused. Gallagher was there to cut some hay and straw with a machine maintained by the accused. It was about milking time when the cutting was finished. The three men all assisted- in the work. About
The accused testified that he took the revolver because he was afraid of Rolland and fearful lest the latter would get it; that he did not intend to shoot the man; that he aimed the weapon at him to scare and keep him back and without any mental determination to discharge it and take human life. The foregoing presents the case in the most favorable light it will fairly bear in favor of the accused. The evidence of ■Gallagher, as corroborated by the fatal wound, was to the effect that the accused left the place where he was milking, went to the house, immediately returned, passing Rolland and the old lady on the way without indications of excitement, quickly turned back toward the barnyard gate on hearing the old lady call to him, approached Rolland quickly from behind to within 'a few feet of him, presented the revolver straight at and on a line directly through his head, from a point a little back of the left ear, and immediately discharged it with fatal result, and that, immediately preceding the shooting, no words passed between the two men, and no movement was made by Rolland towards the accused but Rolland’s attention was directed toward the old lady. The evidence strongly tended to show that the two men were not particularly unequal in size or ability for physical attack or defense, and that the accused was of such peaceable disposition that Rolland had no reason to be apprehensive, and in fact was
The court submitted the cause to the jury upon the theory that there was some reasonable ground in the evidence for a finding of guilt in either of these degrees: murder in the first degree, murder in the second degree, manslaughter in the third degree, or manslaughter in the fourth degree, or to find excusable or justifiable homicide.
It follows from the conviction of murder in the second degree that the jury found the accused not guilty of discharging the weapon with specific mental purpose to take the life of Rolland. The premeditated design of our statutory murder in the first degree is no more or less than mental purpose to take human life, formable on the instant preceding the> fatal act or some time theretofore, it being sufficient that there he a precedent existence of the purpose and persistency of it to and inclusive of such fatal act.
In considering this subject the peculiarity of our statutes, differing somewhat from many others, must not be lost sight of. The only safe way is to tie closely to the exact characteristic of the offense as the statute has been construed time and again by this court; the vital fact being that, the element satisfying the call for premeditated design, is the mental purpose, the formed intent, to take human life, — the term “premeditated design,” in the first and second degrees of murder, and the term “without design to effect death” in murder in .the third degree, manslaughter in the first degree, manslaughter in the second degree, and manslaughter in the third degree, being used, synonymously, and for formed intent to kill. Hogan v. State, 36 Wis. 226; Perugi v. State, 104 Wis. 230, 80 N. W. 593; Cupps v. State, 120 Wis. 504, 97
Counsel for plaintiff in error assume that the case is barren, of evidence to warrant the conviction of murder in the second degree. True, as counsel contend, conviction of guilt in such degree cannot stand without evidence that the homicide was characterized by all the statutory elements essential to it: (a) an act “imminently dangerous to others;” (b) an act of such character as to “evince a depraved mind regardless of human life;” (c) absence of any “premeditated design to effect the death of the person killed or of any human being,” sec. 4339, Stats. 1911; but, it is difficult to perceive any good ground for saying the evidence here does not show all of such elements, if the jury were warranted in finding absence of the “premeditated design.” Surely, for a person to point a loaded revólver at a vital part of another’s body and discharge it, is to perpetrate an act imminently dangerous to others, and if done without excuse or justification and not in the heat of passion characterizing some lower degree
It must be remembered that murder in the second degree is included within murder in the first degree. The distinction between the two is presence in the latter of express malice, characterized by the call for “premeditated design to effect the death of the person killed or of any human being,” and presence, only, in the former of implied malice, from the nature of the slayer’s act — absence of the “premeditated design” of the first degree. Given all the elements of the second degree and the “premeditated design” aforesaid, and the offense is raised to the higher degree.
The more important contention of counsel for the accused, is that the jury must have disbelieved the evidence of the accused and grounded their verdict on the evidence of Gallagher to the effect that, the former walked deliberately up to his victim from behind and shot him, and in such circumstances that the offense would be murder in the first degree •and nothing else, and, therefore, a conviction of murder in the second degree cannot stand.
As to the effect of Gallagher’s evidence, if believed, we need not take issue with counsel; but, that the jury did not base the verdict wholly thereon, is evident, as there was evidence to the contrary — whether believable or not, is another question. We will recur to that later after discussing the effect of setting aside a conviction in such a case as this on the ground urged for it. That will indicate the great care which should be exercised in respect to the matter and the length to which the court has gone in many cases to avoid so administering established rules of law as to work injustice in the name of justice.
The court took the stand at quite an early day, that upon'a conviction as in this case, the accused must be regarded as having been acquitted of every homicidal offense within the information of a higher degree, and as being within the constitutional protection against successive jeopardies, which he is not presumed to waive as to such higher degree by suing out a writ of error and submitting to the judgment of an appellate court for review his conviction of guilt in the lower degree. That such doctrine might lead, in some cases, to permitting a guilty person to go entirely unpunished, seems plain. Found guilty of murder in the second degree, though the evidence conclusively establishes a homicidal offense in
As matter of historical interest, I may say, that the idea incorporated into our constitution upon the subject of successive jeopardies for the same offense, merely crystallized into fundamentals a principle of the common law, but it was not supposed when the matter rested wholly in the common-law principle that a new trial by request preserved for any purpose the former acquittal. Such being the case it is most natural that, though the provision became, in the beginning, a part of the national and part of every state constitution, the idea which first found significant lodgment here in State v. Martin, supra, was either not thought of in the older states, or if thought of, adopted. It was not borrowed from the fountain of our system, the common law of England. It has been disapproved by many courts since it originated, including, and significantly, by the declaration of the federal court, speaking by Judge Geiee, in U. S. v. Harding, 1 Wall. 127. The early cases here have been many times referred to as among the pioneers, and State v. Belden, supra, particularly, as a leading case. There it was recognized that the question was still open to doubt. The court deemed itself yet free to take either side of the conflict and chose to stand upon the
“It seemed to us, however, inore in harmony with the humane maxims of the criminal law and the principles of the constitution, to hold that the finding of the jury acquitting the defendant of the higher offense was an adjudication upon that charge, and that legal effect should be given to it as such, while the new trial should be limited to the lower degree of homicide for which he had been convicted.” State v. Belden, 33 Wis. 120, 124.
The difficulties of that doctrine have been more and more appreciated by lapse of time, since it was announced. Where it has been thought a constitutional amendment was necessary to remedy it, that has, in many instances, been provided. Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443. Where it has been thought legislation, without a constitutional amendment, would remedy the matter, that has occurred. Comm. v. Arnold, 83 Ky. 1. In case of the formation of a new constitution in place of an old one the difficulty has not been lost sight of. Waller v. State, 104 Ga. 505, 30 S. E. 835. The subject has been given about as much significance by the array of conflicting authorities and annotated cases as any in the criminal law, as will be seen by reference to 12 Cyc. 285, notes 83 and 84; 4 Am. St. Rep. 114 and note; 14 Am. Rep. 748. But, with all, no attempt has been made to change the rule here though it became a part of our system forty years and more ago. During all that time it has been competent for the people, acting by the appropriate lawmaking method, to change it. Erom the fact that no attempt has been made to do that, the presumption must be that no change is desired by the sovereign power. In any event, the court would deem itself powerless to act in the matter. The responsibility is on the legislature, and this is said without intending to criticise the law as we find it.
The history as I have given it, and the further statement of the law as we find it, is indicative of the judicial vista
How can an accused person, by any possibility, be injured by a conviction of murder in the second degree when he should have been convicted of murder in the first degree? What right has he to complain when the lower degree was found by reliance, to some extent, on his own testimony? What reason is there for granting a prayer for reversal in such a case, when the petitioner comes confessing, impliedly, that his evidence upon which the jury found him guilty of the lower instead of the higher degree was false ? Does not the
It is considered by the court, upon precedent at least, that the jury were warranted here in finding that when the deceased maliciously advanced upon the accused, threatening to kill, the revolver was pointed and discharged without any formed intent to do so with fatal effect, and so, that it is not necessary, even if it would, otherwise, be permissible, to affirm the conviction upon the ground that, if the accused be not guilty of the crime for which he was convicted, it is because he is guilty of murder in the first degree, and his complaint is of a nonprejudicial error, — one which was committed in part reliance upon his own story, and, so, it is the better way to affirm the judgment upon the merits. The court places the affirmance upon that ground and yet permits the writer to here express his inclination to base the affirmance upon the additional ground of want of prejudicial error. Such additional ground mentioned, I think, would follow the logic of Eckert v. State, 114 Wis. 160, 89 N. W. 826. The conviction there was of murder in the second degree. The
By the Qou/rt. — The judgment is affirmed.