195 Wis. 540 | Wis. | 1928
(1) The defendant contends that the evidence does not support a verdict of second-degree murder. The evidence would sustain the finding that the defendant shot the deceased knowing that he was shooting at a human being. This state of facts would have sustained a conviction of murder in the first degree, if the jury were satisfied beyond all reasonable doubt that the shooting was with premeditated design to effect death. If the jury had a reasonable doubt as to whether the shot was fired with that premeditated design, they were bound to give the defendant the benefit of the doubt and acquit him of first-degree murder.
Second-degree murder is, among other things, distinguished from first-degree murder by the absence of this premeditated design. Under the facts in this case, it is the presence or absence of this premeditated design that distinguishes first and second-degree murder. The firing of a high-powered rifle at an object which may plainly be seen to be a man, if it results in the taking of life, is the killing of a human being which is “perpetrated by any act imminently dangerous to others, . . . evincing a depraved mind, regardless of human life.” Sec. 340.03, Stats.; Radej v. State, 152 Wis. 503, 509, 510, 140 N. W. 21. If the shot was fired without premeditated design to effect death, the act clearly constituted murder in the second degree.
A careful review of the evidence satisfied the court that the defendant may consider himself fortunate that the jury gave him the benefit of the doubt as to the existence of a premeditated design and acquitted him of first-degree murder. Certainly he cannot complain and secure a reversal of the conviction because the jury have given him the benefit of the doubt and found him guilty of a lower degree of homicide than that which would have been sustained by the evidence.
“It must be remembered that murder in the second degree is included within murder in the first degree. The distinc
The rule that no judgment will be reversed for any error unless it affirmatively appear from the whole record that, had the error not occurred, the result of the trial would probably have been materially more favorable to the defendant applies to a-criminal as well as to a civil case. “How can an accused person, by any possibility, be injured by a conviction of murder in the second degree when he should have been convicted of murder in the first degree? What right has he ü> complain when the lower degree was found by reliance, to some extent, on his own testimony?” Radej v. State, 152 Wis. 503, 515, 140 N. W. 21.
The defendant urges that the conviction must be reversed because, if the defendant is guilty of any degree of homicide, it must be murder in the first degree. “Doubtless defendant would not have taken this position had he not known that he could play his game with loaded dice under the rule adopted in State v. Martin, 30 Wis. 216. His purpose is to obtain a reversal and at the same time to save the benefit of the acquittal of murder in the first degree. If defendant must be acquitted of all lesser degrees of homicide because guilty of murder in the first degree, then, although he is guilty of an offense which should be punished by imprisonment for life, the defendant must be given his freedom without undergoing punishment. If the court must administer the rules of law so as to work such an injustice in the name of justice, it presents good reason for changing the rule as to former
(2) The second error alleged is the refusal of the court to submit excusable homicide. So far as material to this case, sec. 340.30 of the Statutes provides that "such hómi-.cide is excusable when committed by accident and misfortune, . . . or in doing any other lawful act by lawful means with usual and ordinary caution and without any unlawful intent.” Doubtless hunting with a rifle is or may be a lawful act done by lawful means. But the act of shooting at an object which could plainly be seen to be a man is not an act done “with usual and ordinary caution and without any unlawful intent.” It has been held that the use of a dangerous weapon in taking human life, such as a revolver or rifle, precludes a finding of excusable homicide. Duthey v. State, 131 Wis. 178, 185, 111 N. W. 222.
The court is satisfied that the defendant had a fair and impartial trial, that his rights were fully protected, and that the conviction ought to stand.
By the Court. — Judgment affirmed.