66 Wis. 355 | Wis. | 1886
1. Exception is taken because the court charged the jury: “If you find it to be the fact that the gun was accidentally discharged, as testified to by the prisoner, or by the apt of Helen Fileo, then you must find the prisoner not guilty.” It is said that this instruction “ substantially told the jury that the burden of. proof as to the defense was on the defendant,” whereas the defendant “ was entitled to the benefit of every reasonable doubt.” But this instruction was more favorable than the one requested by the defendant’s counsel in these words: “If the jury find that the gun went off accidentally only, then no crime was committed, and in that case your verdict must be that the defendant is not guilty.” The court gave the substance of this instruction as requested, and in addition charged, in effect, that if they found the shooting was “the act of Helen,” then they “ must find the prisoner not guilty.” But the trial court did not leave the jury to infer that the burden of proof as to the defense was on the defendant. On the contrary, they were repeatedly told, in effect, that they could not convict unless convinced of the defendant’s guilt 'beyond all reasonable doubt; and then, as if to remove any 'possible chance for cavil, the learned judge, towards the
2. Exception is taken because the court charged the jury: “ I do not think there is any testimony in the case showing a case of manslaughter. You must find the prisoner guilty of murder in the first or second degree, or find him not guilty.” The court was clearly right in saying that there was no testimony showing a case of manslaughter. It is insisted that it appears from the charge that the killing was either accidental, or by ITelen with premeditated design, or by the defendant with premeditated design, and that there is no evidence to support the charge of murder in the second degree. But it appears from the certified statement and exceptions allowed, to which we are confined, that “ there was . . . testimony tending to prove the prisoner guilty of the crime of which he was found gnilty, and also testimony tending to prove him innocent of the crime.” This disposes of that exception.
3. Exception is taken because the eourt charged the jury that “ evidence of good character is admitted in criminal
In the case at bar we do not think the jury could have been misled. The trial judge stated the theory of the prosecution, and the theory of the defense, which were in direct conflict. He told the jury there was testimony tending to prove both theories. He also referred to the testimony in support of these respective theories, which testimony .was also in direct conflict. In connection with the portion of the charge quoted above, and after telling the jury that the prisoner had introduced testimony tending jio show his good character; that he was quiet and peaceable, and not' of a quarrelsome disposition,'— they were also instructed: “ But where the evidence is circumstantial or contradictory the fact that the defendant’s previous character has been good and such as is inconsistent with such conduct as he is charged with, is a fact that the jury should consider in connection with all others in the case; and if, upon all the facts of this case, including the -previous character of the prisoner, you have any reasonable doubt as to his guilt, you should find him not guilty.” This was followed by charging
4. Exception is taken because the trial court did not set aside the verdict as against evidence, and grant a new trial. It is said that such refusal was based upon a misconception of his powers in that regard. The correctness of such ruling sufficiently appears from the reasons given in the written opinion filed by the learned circuit judge in disposing of the motion. It is unnecessary here to add much, if anything, to a few extracts ffcom that opinion. After stating, in effect, that he had been urged to set aside the verdict as not supported by the evidence, on the theory that it was his duty to do so “ unless convinced beyond all reasonable doubt of the prisoner’s guilt,” he said: “ I do not so understand the law.” Then, after quoting at some length what was said by this court in Williams v. State, 61 Wis. 289, and Boyle v. State, 61 Wis. 440, 449, he added: “If there be evidence which fairly tends to prove the guilt of the defendant, and the jury find him guilty, it is not within the province of this court to set aside their verdict because I
We do not think it appeal’s from the opinion of the judge that he disclaimed authority to exercise any judicial function, and hence the case does not come within the rule held in Smith v. Dragert, 61 Wis. 222, relied upon by counsel. He nowhere indicated that the verdict was not supported by evidence. On the contrary, he stated, in effect, that the testimony of the four witnesses named tended to prove the prisoner’s guilt, and, in the absence of the defendant’s own testimony, he thought no unprejudiced mind would say that it did not prove it. He could not say he was satisfied that the prisoner did not fire the gun, nor that he had such doubt of it as to satisfy him that the verdict was wrong. True, his sympathy was with the prisoner from the time he first saw him and learned who he was. This sympathy grew on him during the trial. It apparently gave him great faith and confidence in the truthfulness of the prisoner’s testimony; so much so, that he indicated that had he been one of the jurors he might have been unable to say he entertained no reasonable doubt; that is to say, his faith and confidence in the defendant’s veracity1" was so great that it might have led him, as such juryman,.to doubt the veracity of the four witnesses upon the part of the state. But even this he qualified by indicating that a lawyer’s mind was trained to doubt, and, after twenty ymars’ practice, became almost incapable of being certain of anything. If this is so, then it is well that questions of fact in actions at law' should be determined by a jury,— certainly criminal cases. It has been said that lawyers make poor jurymen. Whether the experiment has been made with good lawyers of the amount of practice indicated may be questionable. It is enough here to know that the judge was not acting as a juryman upon the trial. He wisely discriminated between
5. Exception is taken because the court refused to set aside the verdict, and grant a new trial, upon an affidavit stating, in effect, that two of the jurymen had admitted that they were for a long time divided, the majority being for acquittal, and that one of the jurymen argued in favor of conviction on the ground that the defendant ought not to have been at the place of the homicide. It is too well settled for discussion that a verdict is not impeachable by such admissions or statements. Proffatt on Jury Trials, § 408; Forester v. Guard, 12 Am. Dec. 141, and notes.
6. Exception is taken because the court refused to set aside the verdict, and grant a new trial, on the ground, as appears from the affidavits of the defendant, James Dur-yer, and William Yan Horn, that after the conviction Helen
It is unnecessary to consider the questions presented further in detail.
By the Oour-b.— The several exceptions allowed are overruled, and the cause is remanded for further proceedings according to law.