35 Wis. 315 | Wis. | 1874
Murder in the third degree is the unlawful killing of a human being, without any design to effect death, by a person engaged in the commission of a felony. R. S., ch. 164, secs. 1 and 2 (Tay. Stats., 1826, §§ 1, 2). The verdict in this ease is, therefore, that the defendant did not design or intend the death of the deceased, but that he unlawfully killed him while he (the defendant) was engaged in the commission of some felony. It was doubtless entirely competent and proper for the jury to negative the proposition that the defendant intended to kill the deceased ; and if the evidence justified the finding that the defendant was engaged in committing a felony when he killed the deceased, the conviction of murder in the third degree is right; otherwise not.
The term “felony,” as used in the statute above cited, must be construed to mean an offense for which the offender, on conviction, shall be liable to be punished by imprisonment in a state prison. R. S., ch. 172, sec. 14; Nichols v. The State, ante, p. 303.
■ At the time he killed the deceased, was the defendant engaged in committing an offense liable to be thus punished? If
Keeping in mind the fact that the defendant did not design to kill the deceased, what is there in the manner in which his death was produced to warrant the inference that the defendant intended to inflict any one of such specific injuries? We find nothing therein, or in any of the circumstances of the case, which shows or tends to show any such specific intent. Doubtless it may reasonably be inferred that the defendant was intending to commit an assault and battery upon the deceased, and was in the act of so doing, when he killed the latter. In such case a conviction for manslaughter in the first degree might be sustained. Rowan v. The State, 30 Wis., 129.
The foregoing views are fully sustained by the court of appeals in Foster v. The People. 50 N. Y., 598. Premising that in New York murder in the second degree is the same grade of offense as murder in the third degree in this state, the following extract from the opinion by Judge ANDREWS will show the
So in the present case it was absurd for the jury to find that the defendant sent a bullet crashing through the head and brain of the deceased without any design to kill him, but with a design to inflict upon him one of the specific injuries above mentioned, for which the perpetrator, on conviction, is liable to be punished by imprisonment in the state prison.
We are clearly of the opinion that both questions propound
By the Court. — Ordered accordingly.