50 Wis. 524 | Wis. | 1880
The defendant was put upon trial in the circuit court of Eond du Lac county, in November, 1879, charged with' the crime of murder in the first degree under the statute. The person killed was one Jacob Litzen, a man about twenty-seven years of age. Some reference to the circumstances attending the killing becomes necessary in order to understand the bearing of the question which will be considered as regards the defense. The testimony on the part of the prosecution and defense was quite conflicting as to what was actually said and done by the parties just before and at the time the fatal blow was given. It is neither important nor would it be proper to dwell upon these discrepancies now, nor to indicate, except in the most general way, the facts which the testimony tended to establish. It appears that the defendant, who was about thirty-five years of age when the unfortunate occurrence took place, and his brother Hubert, who was a year and a half older, were, on the evening of the general election, November 10, 1878, at the saloon of one Bourgeoise, in the village of Calvary, in said county. At about 9 o’clock Hubert engaged in a friendly conversation with Matt. Litzen, a brother of the deceased, and during the conversation mentioned the fact that the. deceased had previously whipped him at the saloon of one Bean in the village, and charged that the inj nries which were then indicted were inflicted with metal knuckles. At this remark the deceased, as to whose presence before the testimony
The testimony tends to show that this reconciliation was of short continuance; that angry words soon passed between the parties; and that the deceased challenged or invited the Nett brothers to go out of doors and have a fight. But Wagner again interfered, treated, and restored quiet. Soon the Netts went out, leaving deceased in Bourgeoise’s saloon talking with another party. It seems the parties soon after met in Bean’s saloon, where the quarrel was renewed, Litzen still demanding of one or both the Netts that the offensive language concerning his father should be withdrawn. In a short time the Netts went out of the door onto the platform, with the apparent intention of going home. Litzen either wTent out with or closely followed them. As to what occurred outside, the testimony is quite conflicting; but there is undeniable evidence which “ tends to show that Litzen was quite angry, and made an assault upon Hubert, pushed him from the platform, and attempted to kick him as he was going down the steps. He then turned and advanced upon the defendant in a threatening manner, saying, “Now you go, too;” “ If you do not take back that word, I will pound your head,”' — using an oath and other
These are the more material, though perhaps not all, the circumstances attending the homicide as disclosed in the evidence.
On the trial, the defendant offered to prove what kind of a-man the deceased was as regards.-physical strength; offered to show that he was known to be a desperate, fighting, ruffianly man, ready to fight on the slightest occasion; that he was called the bully of the neighborhood where he lived; and that the defendant had knowledge of all these facts at the time of the affray. The testimony was objected to on the part of the state, and excluded. One exception relied on for a reversal of -the judgment, and the only one we shall consider, is as to the correctness of this ruling of the circuit court rejecting the offered testimony. Gn the part of the defendant it is insisted that these matters were sufficiently a part of the res gestee to he admissible. It is said that they were explanatory of the state of mind under which the defendant acted, and had an important bearing upon the question whether he had reasonable ground to apprehend great personal injury when he was assaulted by the deceased. Counsel claims that it is contrary to all human experience and conduct, where one man is assaulted by another, not to take into consideration the superior physical
We are aware that there is some conflict of authority upon the point, but we shall not go over the cases. Mr. Wharton, in his work on Criminal Law, § 641, has referred to these decisions in his notes to the text, and makes some very just and discriminating remarks upon- the subject. He says: “The conflict between the decisions on this point arises largely from the variation of stand-point. Suppose that the defendant should simply ask to prove that the deceased was ferocious and desperate, as a ground of justification, the answer would -be clear, ‘No one has a right to take the law in his own hands and act as a sort of vigilance committee to clear society of dangerous persons.’ But, on the other hand, suppose the offer to be, not justification, but excuse on the ground of self-defense, or mitigation of the grade of guilt. If, in such case, it be proved that the defendant was actually attacked, and if evidence should be then tendered that the deceased was a man of ferocious temper, of maliggant passions, and of overpowering strength; and if it be, in addition, offered to be proved that the defendant had notice of these characteristics of the deceased, — then the better opinion is that the evidence is admissible. There would be no question in such a case about the right to prove that the deceased was armed with gun or
It seems to us there is good sense and much reason in these remarks of the learned author. Eor surely, where an assault is made by a man of great physical strength, who is known or reputed to be of a brutal, vindictive disposition, upon one greatly his inferior in power, the latter may he induced to resort to means to protect himself from violence, which he would not think of using in an ordinary attack under more equal conditions. The instinct of self-defense is strong, and one may use a knife under such circumstances to protect himself from great harm, without any murderous intent. But it is suggested that the circuit court excluded the proposed evidence under the decision of Brucker v. The State, 19 Wis., 539. In that case the defendant offered to prove that the deceased was a man of a vicious temper, nature and disposition, but the testimony was objected to and excluded. In considering the correctness of this ruling, Chief Justice Dixon says: “ If such evidence were admitted on behalf of the prisoner, it would be competent for the state to show that the deceased was of a mild and peaceable character. Such evidence is too remote and nncertain to have any legitimate bearing upon the question in issue. The provocation under which the defendant acted must he judged by the res gestee, and the evidence must be confined to the facts and circumstances attending the assault upon the defendant.”
This case is not very fully reported, or rather the facts attending the homicide do not appear; nor do such facts appear in the original bill of exceptions on file. But when the case was first here (16 Wis., 334), the evidence in reference to the homicide was fully stated. Probably the testimony was substantially the same on the second trial, when the proposed evidence was excluded. Assuming it to be so, the proposed testimony was doubtless properly rejected, for the circumstances do not raise a question as to whether the defendant
The case, in all of its facts, is clearly distinguishable from the one under consideration, where possibly the jury might have found, had all the evidence been admitted, that the deceased was so much superior in strength, so brutal and vindictive in disposition, that the defendant might reasonably have supposed that he could only protect himself from great bodily harm by the use of his knife in defense. And it is obvious that,' under our statute,- it had an important bearing upon the
Quite a number of exceptions were' taken to the charge of the court, in which the jury were instructed as to what constituted the different degrees of murder and manslaughter under our statute. Inasmuch as there must be a new trial, on account of the rejection of the testimony already alluded to, we will not consider the charge. Qn another trial the evidence may be different,'and a charge applicable to the testimony will necessarily be changed so as to apply to the facts of the case. We think the court should have granted a new trial, and that the exception taken to the overruling of .the motion for a new trial, which was allowed, must be sustained. The judgment of the circuit court must therefore be reversed, and the cause remanded with directions to grant a new trial herein.
The warden of the state prison will surrender the defendant to the sheriff of Eond du Lac county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law. >
By the Court.— So ordered.