Shiefel v. State

180 Wis. 186 | Wis. | 1923

Crown pi art, J.

The plaintiff in error claims that the testimony given by him at the inquest was inadmissible at the trial for the reasons that it was given while under duress and because he was not apprised of his constitutional right to sit mute. This court has held otherwise. Mack v. State, 48 Wis. 271, 4 N. W. 449; Dickerson v. State, 48 Wis. 288, 4 N. W. 321; State v. Glass. 50 Wis. 218, 6 N. W. 500; Emery v. State, 101 Wis. 627, 78 N. W. 145; Anderson v. State, 133 Wis. 601, 114 N. W. 112; State v. Lloyd, 152 Wis. 24, 139 N. W. 514.

The plaintiff in error also assigns as error the admission of the testimony of Mrs. Nechvatal and Jerry Brabec as to statements of Prohaska, which he claims to have been mere hearsay. The state contends that such evidence was admissible as a part of the res gestee. When Prohaska made his declarations he had gone about a quarter of a mile from the scene of the tragedy. The length of time after the happening of the events which he witnessed, and the distance from the place, were such that it cannot be said that such statements were a part of the picture of the scene. His statements were not the spontaneous outcome of the fracas. He had had time for reflection and to arrange his story as his interest might dictate. Pie had been in the melee. He might be under temptation to' color the facts. The reason of the rule of res gestee was absent. The rule is based on the experience of mankind that statements made at the time of the happening of an event and as a part of the event itself are apt to be truthful and give a flashlight, as it were, of the event itself. See Bouvier, Law Dict.; 10 Ruling Case Law, 974; Johnson v. State, 129 Wis. 146, 108 N. W. 55. But in a criminal case where the prisoner’s liberty is at stake, it would be unsafe to extend the rule to the length that was allowed x in this case. Much must be left to the discretion of the trial court in such cases, but we are of the opinion that the bounds of discretion were here exceeded. The error was prejudicial. Mrs. Nechvatal testified :

“He said, 'Matt, come out there. They are fighting,’ and in a little while Joe hollered for help; he said, ‘John, take care of me, I am dying. And go after Matt.’ That is what John said rvhen he came in.”

This statement did not accord with the evidence of Pro-haska or- John Shiefel on the trial. There waslno evidence that either John or William was fighting. William was knocked unconscious, with no evidence that he ever struck a blow. John Shiefel was not fighting — he was merely trying to ward off the attacks of his assailant. Stake had not been injured when Prohaska left, nor for some time afterward, and so he had not cried out “I am dying. Go for Matt.” Quite plainly the witness was mixing up what Pro-haska said with what she had heard at other times and other places. Certainly her testimony does not accord with that of the three actors on the scene nor with the probabilities. The jury may well have thought that there had been a fight between Stake on the one side and the two Shiefels on the other, in which case the two men could protect themselves against the one without the necessity of killing their opponent.

The court is impressed that on the evidence the question of the guilt of the plaintiff in error presents a very close question. Hence the testimony improperly admitted may have turned the scale. It must be remembered that the jury acquitted the plaintiff in error of killing with malice, of killing in disregard of human life, or of killing in heat of passion. He killed in self-defense, but the jury found that he did not need to go so far as to kill his assailant. This is the close question, whether Shiefel, under the evidence, which must establish guilt 'beyond a reasonable doubt, could not have believed his life was endangered to the point of using his knife so as to produce a possible fatal wound. We are asked to hold the evidence insufficient and discharge the prisoner.

After, full consideration of all the evidence we have concluded to send the case back for a new trial, if the district attorney shall conclude that there is sufficient competent evidence to warrant further prosecution.

The objection to the charge Of the court is not well founded. The charge as given was pertinent to the facts and proper.*

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