Schmidt v. State, 124 Wis. 516

124 Wis. 516 | Wis. | 1905

Dodg-e, J.

The first assignment of error is that a conviction was not warranted. With this, after a careful examination of the evidence, we find ourselves unable to agree, although conceding that there is plenty of evidence which might have warranted a contrary conclusion by the jury. That defendant did not voluntarily discharge the pistol is declared by himself, and to some extent supported by other evidence, and the jury must have reached this conclusion in finding manslaughter in the fourth degree, for this, under the circumstances, must have consisted either in the accidental discharge of the pistol while defendant was doing some unlawful act, under sec. 4362, Stats. 1898, or, if the act being done was lawful, then by culpable negligence (sec. 4363, Stats. 1898). We are persuaded that there is evidence from which either of these conclusions may have been reached. The pointing of the pistol at the deceased might have been lawful or unlawful, according to the apparent imminence of an attack or breach of the peace by the deceased. Upon this question - the evidence is conflicting. On the other hand, if the jury found that the threatening of the deceased with a pistol was justified by the apparent danger, so that the act was lawful, they might nevertheless have found that the discharge of the pistol was the result of culpable negligence. There is evidence of the entire ignorance of the defendant as to the use of a pistol, and of the fact that, as he held it toward the deceased in both hands, his thumbs were in contact with the trigger. We are not prepared to say that with so dangerous a weapon as a pistol such method of handling might not be deemed culpable negligence.

Error is also assigned upon an instruction, generally, to the effect that the defendant, being in charge of the saloon, had a right to use force to quell a disturbance therein, and if, in so doing, he was assaulted by the deceased, had a right to repel such assault with reasonable force, and such as was necessary to' accomplish that purpose, “and no greater or other force than was actually necessary under all the circumstances.” This was error. It is no less true that one assaulted is entitled to act upon his apprehensions, reasonably justified by the circumstances, in deciding as to the amount of force which he may use, than that such apprehension may justify him in using force at all; and to tell the jury that he may use no more force than is “actually necessary” is as erroneous as to tell them that, before he can use force at all, the peril of an assault must be actually imminent, instead of merely imminent to his reasonable apprehension. Perkins v. State, 78 Wis. 551, 47 N. W. 827; Richards v. State, 82 Wis. 172, 51 N. W. 652; Ryan v. State, 115 Wis. 488, 502, 92 N. W. 271; State v. Hickam, 95 Mo. 322, 328, 8 S. W. 252; State v. Brooks, 99 Mo. 137, 144, 12 S. W. 633; State v. Harper, 149 Mo. 514, 528, 51 S. W. 89; 1 Bishop, New Crim. Law, §§ 305, 874.

The state urges that such error was cured by an instruction elsewhere in the charge to the effect that defendant was justified in acting upon the facts and circumstances as they reasonably appeared to him. We do not find any such instruction clearly addressed to the quantum of force justified, but merely to the imminence of peril justifying force at all. Even if it be deemed applicable to the former subject, however, it was not given in connection with and as a qualification of the instruction now assailed, as was the case in Richards v. State, supra. It was an independent statement of a general rule of law. An erroneous instruction is not cured, nor the presumption of prejudice therefrom overcome, by a correct statement of the law on the same subject elsewhere in the charge. Imhoff v. C. & M. R. Co. 20 Wis. 344, 346; Eggett v. Allen, 106 Wis. 633, 638, 82 N. W. 556; New Home S. M. Co. v. Simon, 107 Wis. 368, 378, 83 N. W. 649.

By the Court. — Judgment reversed, and cause remanded for a new trial. The warden of the state prison will deliver the plaintiff in error, Frcmlc Schmidt, to the sheriff of Oneida county, who is directed to keep the said Schmidt in his custody until discharged therefrom by due process of law.