138 Wis. 152 | Wis. | 1909
The charge was that the accused, upon a particular day and at a particular place named, while armed with a deadly weapon, to wit, a rifle, feloniously assaulted five persons, named, with intent to murder them.
The general claim of the state was this: John Dietz resided on the banks of the Thomapple river in Sawyer county, Wisconsin, some sixty miles by the nearest usable traveled way from the railroad station at Hayward, the county seat, and in a wild and substantially uninhabited country; miles beyond
Though a subpoena was duly issued to procure the attendance of John Dietz at the trial he was not produced. So far as appears the trial court and the jury were left to imagine why the one who appeared to be the dominant figure, in this most serious offense, was not present to testify. That it was not because he could not be found, sufficiently appears from the evidence. That it was not because, being served, he in contempt of authority refused to obey, further appears by inference. There is left, as the only inference, that by the hostile attitude of Dietz the officer with the subpcona was unable to make service upon him, without such peril of personal safety that he would not incur it. This situation must be considered with reference to some occurrences on the trial respecting which complaint is made. There was no dispute in the evidence but that the condition of things suggested, leading up to the shooting, existed, and no dispute but that the circumstance of the shooting and what followed as claimed, actually took place. The sole claim of the accused was that
The foregoing somewhat lengthy statement of the state’s •claim, and the general character of the evidence in support of it, will suffice, without going into the evidence in detail. The claim made that the verdict of the jury is not supported by the evidence is without merit. The evidence seems ample at all material points to warrant the conclusion the jury reached.
Numerous exceptions were saved to remarks made by the prosecuting attorney in opening the case, such as referring to the existence of litigation between the Chippewa Lumber & Boom Company and Dietz, and to the sheriff, meaning, obviously, one of the deputy sheriffs, having at the time of the shooting a warrant, among others, for the arrest of Dietz for an offense upon one of the lumber company’s employees, who was'with the officers on the day of the shooting. Also' to ref-
We have thus grouped all of the complaints made as to unfair conduct of the trial on the part of the district attorney and his assistant. They are all of the same general character- and fall by one general reason.
Counsel was radically wrong in the idea that the circumstances leading up to the shooting, claimed by the district attorney to show a motive therefor and such connection of the-accused therewith as indicated that he was a guilty participant with Dietz in a purpose to defend his supposed rights by force against the officers of the law as well as against the private party, were foreign to this case. They were a legitimate-if not a necessary part of it. If John Dietz was a guilty participant in the shooting, then the accused was, if he was the-second man present. There is no escape from that. Really, though John Dietz was not on trial, he was the most significant figure in the affair. Therefore, all circumstances now-narrated leading up to the astonishing situation of one man with neighborly assistance, including the accused as was-claimed, carrying on successful warfare with a great state, defying its laws, its officers, and its courts, culminating in the-battle in the woods which ended, as the jury believed, and had a right to believe, without any great loss of blood, owing to-
Perhaps it were better that reference to the shooting of Tracy had not been made. There was no evidence that Dietz did the shooting, or, if he did, that the accused participated therein, while if it had any connection with the particular offense, even as an evidentiary circumstance, it was quite remote. However, it was so consistent with the general state of things which resulted in the particular shooting, that we are unable to say that the district attorney did not honestly expect, when he referred to the matter, to introduce evidence in respect thereto, showing that it was a part of general warfare in which the accused was engaged and of which the shooting in question was a part and that it might be held competent, at least as bearing on tire intent with which the firing on the officers occurred. Neither can we say but that the cif-cuit judge might reasonably have supposed, at the time he ruled on the question, that, possibly, the circumstances re
The interrogatories, suggesting that the officers sent to arrest the accused were resisted, assaulted, and injured by him, which the court would not permit to be answered, are very far from the rule in Buel v. State, 104 Wis. 132, 80 N. W. 78, condemning the asking of questions which are clearly improper, for the evident purpose of creating prejudice rather than to elucidate the truth. It is evident that the district attorney supposed it was perfectly proper for him to prove that the conduct of the accused at the time of his arrest was inconsistent with innocence, in that he resisted the officers, as on the former occasion, assaulting and injuring them, and well the attorney might so have thought, as it was not only his right to make such proof, if the facts warranted it, but it was his duty to do so, if the evidence was at hand, or reasonably obtainable. Counsel say the questions were asked to create a false impression. How are we to know that ? The witness was not permitted to answer. If the questions, unanswered, tended to create a wrongful prejudicial impression, counsel for the accused took the method best calculated to promote that situation. If the truth were, that the conduct of the accused at the time of his arrest was consistent with innocence, the proper way was for counsel to have put no obstruction in the way of proving it. Not only was no harmful error committed in propounding the interrogatories, but they were perfectly proper and the ruling in favor of the accused was wrong. Conduct of an accused person, evincing a disposition to evade prosecution, and especially when it
The question asked of the sheriff of Sawyer county as to whether “the country was not in terror of those men,” referring particularly to Dietz and his associate, perhaps had better not have been asked, though doubtless counsel honestly believed it was proper to show fully the attitude of John Dietz and his associates and the impression it had created on the people of the county, as bearing on the probable purpose of their ambushing the party on the occasion in question and the intent with which the shots were fired. It is pretty hard to draw an arbitrary line on evidence tending to establish a combination to commit an offense or to accomplish a general purpose, in aid of which a crime is committed, or such a line, particularly in such a case as this, respecting circumstances evi-dentiary of intent. The learned circuit judge, with the abundance of caution which characterized his conduct of the trial, refused to allow the question to be answered, but that does not even suggest that the asking of it was error. Had the court ruled the other way the field of competency is so broad that it is by no means certain the ruling would be condemned. However, we repeat, it were better that the question had not been asked and the jury left to infer the situation, such as it was, from evidence of circumstances bearing thereon.
It was by no means improper to show that just prior to the occurrence an officer had visited Dietz with papers for his arrest and failed to apprehend him, and admonished him that he' would probably be called on by a force sufficient to secure his submission. The learned court was overcautious in ruling on that in favor of the accused. The fact, if it were a fact, that shortly before the occurrence in question the officers of the law were unable to apprehend Dietz and he was then
The question asked, on cross-examination, of the witness called as to the character of the accused, better not have been asked just as it was, but like many other questions of which complaint is made, it was not permitted to be answered, and like many of them it was proper, in the main, and might well have been modified so as to remove any objectionable element. The use of the term “outlaw” was a little harsh, yet w© are not prepared to say, in view of the facts disclosed, that it was entirely unwarranted. The witness, having testified to the reputation the accused had as a peaceable citizen in the community where he had resided for five years preceding the trial, and there being evidence strongly tending to show that the accused was in fact an accomplice of John Dietz in criminally defying the law, it was competent to ask the witness, for the purpose of discrediting him, whether the accused was not reputed to be such an accomplice, and that was the effect of the question.
It were perhaps better that the colloquy which occurred respecting the absence of John Dietz from the trial, notwithstanding the importance of his presence, if the testimony of the accused was true, had been tempered a little different, yet we are unable to say it was not within the privilege of the prosecuting officer to say what he did. He was warranted in arguing from the evidence that Dietz was what he characterized him to be, and that the accused was his willing assistant on the occasion in question, and that the evidence which pointed to one as a criminal pointed just as certainly to the
We will' not further pursue the discussion, in much detail, of the numerous matters we have grouped together. There is no harmful error discovered in any of them. In general, the district attorney showed commendable care not to drag illegitimate matters into the ease. We cannot see any indication of intent at any point to merely create prejudice within the calls of Buel v. State, 104 Wis. 132, 80 N. W. 78. Whatever digressions there were from the highest standard of propriety were not haimfiul, nor do they merit any special criticism. They were fairly within the broad privilege of the attorney, suggested in Fertig v. State, 100 Wis. 301, 75 N. W. 960. As regards the court’s rulings, the accused certainly has ho ground to complain, as we have seen. They were, in the main, in his favor when they might well have been otherwise, and when they were not they were not prejudicially against him. In the final winding up of the case by counsel to the jury the court was at least excusable in allowing the state’s attorney to argue from the evidence that John Dietz was an “anarchist,” and “was behind the defense.” As before indicated, his connection with the transaction could not have been kept from the jury rightly or at all. Neither could the fact be kept from them that the acquittal of one was highly important to the other, and that the latter’s friends were interested in and prominent in the former’s defense.
The court properly refused to submit to the jury the question of whether if the accused was guilty of any offense at all it was of a higher grade than assault and battery. True, under a charge of assault with any specific intent, the latter clement and the former combined, making an offense of a higher degree than the element of assault alone, there may be a conviction of the lesser offense only, if such only is the grade of guilt, in the judgment of the jury, beyond a reasonable
In determining whether an instruction as to any lower degree of criminal offense, included within the one charged, should be given to the jury, the question is not solved by determining that the major includes the minor offense. Julies have no discretion in such cases. They cannot rightly convict of the lesser offense merely from sympathy or for the purpose of reaching an agreement. Conviction of the lesser degree must rest on evidence establishing the facts in that regard, and failing to establish the facts incident to a higher degree. So there must be the lesser offense included within the greater and there must be some reasonable ground on the evidence, in the judgment of the court, for a conviction of the former and not of the latter. Hempton v. State, 111 Wis. 127, 139, 86 N. W. 596; Duthey v. State, 131 Wis. 178, 182, 111 N. W. 222; Montgomery v. State, 128 Wis. 183, 197, 107 N. W. 14; State v. McPhail, 39 Wash. 199, 205, 81 Pac. 683; State v. Bailey, 31 Wash. 89, 71 Pac. 715; State v. Wood, 124 Mo. 412, 27 S. W. 1114. The law in this respect is well indicated by this language of the court in State Wood, supra:
“There was nothing in the evidence calling for an instruction on the lower grade for an assault to kill . . . and under such circumstances the court should not invite the jury to find for a lower grade than is made by the evidence.”
We do not consider the assault, testified to have been committed on Giauque some moments after the shooting ceased
Under all the circumstances, it is the opinion of the court that, conceding the accused w'as at the shooting and participated therein, as the jury found were the facts, there was no reasonable escape from the conclusion that his act was more than mere assault and battery. So the requested charge was properly rejected. If the evidence would have warranted conviction of any offense within the whole charge less than the whole but greater than assault and battery, failure to submit it was not harmful in a legal sense, because not requested. Cupps v. State, 120 Wis. 504, 522, 523, 97 N. W. 210, 98 N. W. 546. Moreover, in such a case instruction requiring conviction of the higher grade, or acquittal, is rather favorable than harmful to the accused. Fertig v. State, 100 Wis. 301, 75 N. W. 960; Dickerson v. State, 48 Wis. 288, 4 N. W. 321; Winn v. State, 82 Wis. 571, 52 N. W. 775; Odette v. State, 90 Wis. 258, 62 N. W. 1054.
There has been no purpose in later years to displace the rule laid down in Dickerson v. State, supra, and upon due consideration and recognition of its want of harmony with some authorities elsewhere, in Winn v. State, 82 Wis. 571, 52 N. W. 775, declared to be perfectly logical and too well grounded in our jurisprudence to be doubted. It is not inconsistent with the rule in Hempton v. State, supra, and similar cases. In the Ilempton Case the particular rule was recognized and affirmed. In the whole, the rule in homicide cases is that the better practice is for the trial judge to carefully scrutinize the evidence with the greatest care, view it in the most favorable light it will reasonably admit of from the standpoint of the accused, and, whether requested or not, submit the case to the jury on every phase of criminal homi-
Complaint is made because the court refused to instruct the jury as to the bearing of want of motive. The request was to the effect that want of motive for a person to- have committed the offense with which he is charged is a circumstance to be considered by the jury in connection with all other evidence in determining the issue respecting such charge. That is correct in the abstract. But it is not necessary for a court to submit to a jury a requested instruction merely because it .-states a correct rule of law. Does the case- on the evidence reasonably require the instruction? That is the principal question, and unless the affirmative is true, rejection of the request is proper. Here the court, doubtless, thought such an instruction could not reasonably cut any figure, since it could not have any perceptible effect on the question of whether the accused was present at the shooting or not, and if he were then the motive for what occurred is so manifest that the jury could not reasonably have come to the conclusion there was none. Proof of motive is not indispensable to establish a criminal offense. Absolute want of motive does not necessarily raise or leave in connection with the legal presumption of innocence a reasonable doubt as to guilt, since the crime, including the essentials of guilt, may be inferred from the act itself and consequences, if they are the natural and probable effect of the act. Cupps v. State, supra; Pointer v. U. S. 151 U. S. 396, 14 Sup. Ct. 410; Clifton v. State, 73 Ala. 473; McLain v. Comm. 99 Pa. St. 86, 99. In doubtful cases the evidentiary effect of want of motive ma.y be of much
The requested instruction that a mere formal charge of, and placing one on trial for, a criminal offense is not evidence of. guilt, was amply covered by the plain and full charge as to the presumption of innocence.
A requested instruction as to the burden of proof and the degree of certainty of guilt to warrant a conviction, was sufficiently covered in the general charge, and the same is true as to several other requests which need not be referred to in detail.
A request was made to instruct the jury to the effect that, in order to warrant a conviction, it is necessary for the state to prove by evidence beyond a reasonable doubt that the defendant maliciously and deliberately formed an intent to kill “one or more persons named in the information and that he with such deliberately formed intention” attempted to* effectuate it. So far as that states good law it was included in the general charge. It was properly rejected for the iteration and reiteration of the words “deliberately formed intention,” which are not used in our statutory offense of murder in the first degree, instead of the words “premeditated design,” which are so used. Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546.
Complaint is made because the court said to the jury: “You are instructed that a man is presumed to intend the natural, probable, and usual consequences of his act.” That is about as familiar a principle of law as we have. Cupps v. State,
Had the instruction complained of been given in such a way as to lead the jury, reasonably, to believe that the act and purpose of shooting with the natural and probable result to destroy human life, necessarily, established, as a matter of law, the essentials of intent to commit the crime of murder; that the intent was not a fact in controversy to- be established by evidence, the same as the act alleged to have been characterized by the intent, — the situation would be different. So the contention supported by numerous authorities that the specific design to take human life must be established by evidence and not left to depend upon a presumption of law, is beside the case. True, it is to be so established, but the natural inference of fact arising from the act is evidence of the purpose thereof, to be considered with all other evidence bearing on the question, and in no other sense was the instruction given.
The contention of counsel that the principle embodied in the instruction has no application except in case of the natural and probable consequences actually occurring, which has support in State v. Dolan, 17 Wash. 499, 50 Pac. 472, is illogical in the extreme. True, effectuation of the act
This closes a review of all errors assigned with’ as much detail as seems required. Some matters have not been mentioned at all and others only in a general or incidental way, hut all have received the study which the importance of the case would seem to demand. The case was ably tried by the court and by counsel on both sides, and, in our opinion, justice has been vindicated. The case developed a most astonishing situation, respecting successful defiance of the lawful .authority of the state, which fully warranted the learned trial judge in strongly characterizing the accused and his confederate at the time of passing sentence as guilty, in addition to the offense charged, of a highhanded defiance of the law of the land equivalent to open war with duly constituted authority. That does not, as we view it, evidence prejudice on the part of the learned judge, and give color to the conduct of the trial as prej udicial to the accused. It was a deliberate judicial expression on the case as it appeared when ready for judgment, given after restraint, upon personal views, which had been very marked in favor of the accused, and when such restraint not only was no longer necessary, but the situation of having successfully defied the law/ as appeared to the judge, could properly be pictured as a preface to the sentence to be passed, and a subject for reflection to any one concerned.
By the Courts — The judgment is affirmed.