Cupps v. State

97 N.W. 210, 120 Wis. 504, 1904 Wisc. LEXIS 51

• Court: Wisconsin Supreme Court
• Decided: February 23, 1904
• Status: Published

Opinions

The following opinion was filed November 17, 1903:

Maeshall, J.

The main contention upon which counsel for plaintiff in error relies for a reversal is that the evidence was not sufficient to warrant a conviction of murder in the first degree if of any offense; though it does not seem to be urged with confidence but that the evidence justified a conviction of guilty of some homicidal offense. Preliminary to the discussion of such contention we will briefly state the ■salient evidentiary facts which- the testimony either established or so strongly tended to prove as to warrant the jury in finding their existence.'

Ole Gustad and plaintiff in error were young men. The latter was about twenty years of age. He lived a reputable life till about a year prior to the homicide. Gustad was twenty-three years of age. For several years prior to the homicide he had associated with bad characters and generally .lived a disreputable life. In June, 1899, or a month or two prior thereto, plaintiff in error, at St. Paul, Minnesota, began to associate with Iva Drake, an unmarried woman, knowing that she was of bad character and pregnant. She gave birth to a child shortly after such acquaintance •commenced. He married her prior to July, 1899. During the time he associated with her prior thereto she had a companion of bad character by the name of Ella Day, a favorite of Ole Gustad. The acquaintance of plaintiff in error with the latter commenced after he began to associate with Iva Drake. After that event the two young men chummed together, more or less, till after the homicide. After plaintiff in errar and tbe Drake woman were married they spent several months going about from place to place, apparently not having any honorable means of support. In company with Ella Day they arrived at Stanley in the latter part of October, 1899. On the morrow a livery rig and driver were procured, and the two girls with plaintiff in error, were driven out of the village, a short distance^ to Mrs. 0’Dell’s house of ill fame. Plaintiff in error knew the' character of the house. He left his wife there apparently consenting that she should remain and encouraging her to do so and to live the life common to such places, he returning to Stanley, where he resided for several weeks doing nothing but taking care of a little child of Ella Day, the two girls paying his expenses from the fruits of their immoral life. At the end of that period Gustad joined him and the two went to St. Paul to obtain work. About a week after they arrived in St. Paul they returned to Stanley, leaving St. Paul on the evening train of November 26th, and arriving in Stanley a -little before twelve o’clock p. m. of that day. Cupps had upon his person a revolver. Gustad had no weapon. When the two arrived at Stanley they avoided being observed by the train crew. When the train moved out of the station they went into the waiting room of the depot and sat down by the stove, indicating by their manner a disposition to avoid being recognized. After remaining there about an hour, at the suggestion of Cupps they started for the O’Dell place, where they arrived at about two o’clock a. m. One of them immediately rapped at the door and it was promptly opened by Mrs. 0;Dell. She was the only person in the lower part of the house. Mrs. Cupps, the Day girl, and one Anna Wing were upstairs and were the only occupants of the house except the O’Dell woman: The Day girl was -in a room by herself at the head of the stairs. As soon as Mrs. O’Dell opened the door a noise as of persons entering the house was heard, and immediately thereafter the O’Dell woman was beard to exclaim: “My God, don’t sboot me!” or words to that effect. Immediately thereafter a pistol shot was heard, followed by an exclamation from the woman: '“They have killed me, they have killed me!” or words to that effect. Sounds as of the persons who entered the house hurriedly leaving the same, were then heard. The woman was then heard to groan several times, and thereafter all was still in the lower part of the house. The girls remained upstairs till morning. They then called to a passer-by, resulting in an investigation being made and Mrs. O’Dell being found where she was last heard, lying upon the floor dead, with a pistol wound in her neck. Immediately after the ■shooting Cupps and Gustad hurriedly returned to Stanley, where they secreted themselves behind some box cars till a train arrived, bound for St. Paul. They boarded the train, avoiding being observed by the train crew, and beat their way to St. Paul, arriving there before noon. Soon thereafter plaintiff in error sold his revolver, saying that he had no further use for it. About a week after they returned to 'St. Paul the two men were arrested, charged with being guilty of the murder of the O’Dell woman. After the arrest plaintiff in error claimed that he was not at Stanley on the night of the homicide. On the preliminary examination he admitted that he and Gustad visited Stanley on the night of the homicide and that they both started for the O’Dell place. Fie claimed, however, that he had some altercation with his companion, which resulted in his turning back while Gustad went on; that he was not present at the O’Dell place at the time of the shooting; that Gustad overtook him before he arrived at Stanley and that the two soon thereafter reached 'Stanley, boarded a passing train,, and went to St. Paul. lie claimed that he did not know that the O’Dell woman was ■shot, but suspected it. His story in justice court was different in many respects from the one he told upon his trial in the circuit court. lie then admitted being present when the woman was shot and said that his testimony in justice court inconsistent with that given upon his trial was false. He claimed that while the two were on their way to the O’Dell place Gustad borrowed his revolver ostensibly to shoot at something by the wayside; that he discharged the weapon and then reloaded it, having in-his possession some cartridges which belonged 'to the accused; that he returned the revolver to the accused shortly after they left the O’Dell place. He testified that as soon as they entered such place Gustad drew the revolver and shot the woman; that he was then about to go upstairs in search of his wife, and that the woman, when shot, was directly between him and Gustad, facing the latter. Gustad denied having the revolver in his possession on the night of the homicide at all. He testified that plaintiff in error, as soon as they entered the O’Dell house, drew his weapon and shot the woman. _Both agreed that immediately after the shooting they hurriedly returned to Stanley, secreted themselves till a train came along, and then boarded the same for St. Paul, reaching there as before stated.

The foregoing statement seems to be sufficient, without argument, to answer counsel’s contention that there was no evidence produced upon the trial to warrant the jury in finding a verdict of murder in the first degree. True, the direct evidence as to who did the shooting was confined to the two men, the accused and his companion, who were the sole witnesses of the homicide; but there were evidentiary circumstances tending to show that plaintiff in error was the guilty party and that the two visited the O’Dell place upon the night of the homicide, one or both being bent upon an unlawful purpose of a serious nature, and probably the one that was effected. There was the evidence tending to show that both endeavored to avoid recognition while at Stanley; that they purposed, before leaving St. Paul, to go to Stanley and return in such a way as to render their absence from St. Paul unobservable; that plaintiff in error was the leader of the expedition; that he owned and was in possession of the weapon with which the homicide was committed, and that his story of the shooting was highly unreasonable in that he claimed that, when Gustad fired the shot, the woman was. standing in a direct line between them, face to face with Gustad. As before stated, however, on the question of who did the shooting, we do not understand that counsel for appellant contend but that there was evidence to warrant the-jury in finding that plaintiff in error did it; the point argued being that no evidence was produced showing-that the shot was fired with the intention to take human life, requisite to-the crime of murder in the first degree. To -our minds the-evidence on that point seems to have been ample to warrant the jury in the conclusion which they reached. The location of the wound indicates that it was inflicted with a pistol pointed at the woman’s neck and probably slightly downward. Whoever fired the shot must have had his arm raised to a position quite inconsistent with an accidental discharge of the pistol during a struggle between him and the woman. There were no powder marks upon the deceased, indicating quite clearly that she and her assailant were not near enough together at the time of the homicide to be in physical touch with each other. The location of the wound and the other circumstances strongly indicated that the wound was intentionally inflicted. It was in a vital part of the body, giving rise to the familiar legal presumption that whoever inflicted it intended to produce the result which followed, such result being a natural and probable consequence of the act. Add to that the fact that the woman exclaimed the instant before the shot was fired, “My God, don’t shoot me!” and exclaimed immediately after the discharge of the pistol, “They have killed me, they have killed me!” or words to that effect, and we have a pretty strong showing that whoever fired the fatal shot did so intending to accomplish what in fact resulted. That satisfies all the essentials of murder in the first degree, though there may not have been any definite or considerable period of time between the formation of the design to kill and the effectuation thereof. It is sufficient to satisfy the statute if the person committing’ the homicide has,’at the time of inflicting the fatal wound, a design to take human life, and inflicts such wound with the purpose of accomplishing such design, and that death ensues, there being no circumstance to render the homicide excusable or justifiable. Hogan v. State, 36 Wis. 226, 244; Id. 30 Wis. 428; Perugi v. State, 104 Wis. 230, 80 N. W. 593.

While, on account of the evidentiary circumstances to which we have alluded, aside from the fact of killing by means naturally calculated to effect death, the case as to the degree of criminal homicide of which the person who fired the fatal shot was guilty, did not depend upon the presumption arising from the fact of killing and -the manner thereof, .in that it was by means naturally and probably calculated to produce death, if it did so depend we could not agree with counsel that such presumption goes only to the question of whether the homicide was criminal or not; that it was not sufficient to prove the character of the offense. Erom the circumstance of the taking of the life of a human being by the act of another naturally and probably calculated to cause that result the law presumes that such person, when’he perpetrated the act, foresaw and intended the result which followed, hence must be guilty of the highest offense of criminal homicide known to our law, in the absence of evidence showing that the homicide was justifiable or excusable, or sufficiently rebutting the presumption ,of intent to take human life, to raise a reasonable doubt on the question. That must be so, since under our statute every intentional taking or human life not excusable or justifiable is murder in the first degree. Perugi v. State, supra. When it is made to appear in the prosecution of a case like this that the accused fired the shot, the weapon being aimed at a vital part of the body, and that death ensued as a natural and probable result, the presumption of fact as to intention to take human life, in the absence of any explanatory circumstance or evidence, makes a 'prima facie case for the prosecution. The state is not bound to go further and negative any probability that the occurrence was the result of accident, or that there were circumstances reducing the homicide below that of murder in the first degree, or excusing or justifying it altogether. The accused at that point must take up the burden of rebutting the prima facie showing made against him. lie must show, by evidence at least sufficiently convincing to raise a reasonable doubt as to the intention to take human life or as to whether such taking was justifiable or excusable, that there was no such intention, justification or excuse, or the jury will be justified in finding him guilty of the highest offense of criminal homicide. That rule is elementary. We quote from 3 G-reenl. Ev. § 14:

“This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do' not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise.”

That burden is successfully raised, as we have seen, if the accused produces evidence sufficient in the judgment of the jury to raise a reasonable doubt as to the felonious intent. This subject was very fully discussed by Chief Justice Shaw, in Comm. v. York, 9 Metc. 93. The conclusion there reached is fairly stated in the syllabus thus:

“When, on the trial of an indictment for murder, the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious, and an act of murder, and proof of matter of excuse or extenuation lies on the defendant.”

By reference to the opinion it will he seen that the term “murder” in the syllabus means killing with malice aforethought, or murder in the first degree under our statute. That is stating the rule broader than is necessary for the purposes of this case, and broader than we would advise giving it to a jury. The better way is to state that, in the absence of evidence to the contrary, he who takes the life of another by the infliction of a wound or some act naturally and probably calculated to produce death, is presumed to have intended that result and to be guilty of murder at the common law, and murder in the first degree under our statute. Chief Justice Shaw, speaking of the nature and force of the presumption, said:

“The willful and voluntary act of destroying the life of another is . . . injurious in the highest degree to the rights of such other. . . . The natural and necessary conclusion from such an act willfully done, without apparent excuse, is that it was done malo animo, in pursuance of a wrongful injurious purpose, previously, though perhaps suddenly, formed, and is therefore ‘a homicide with malice aforethought.’ ” Page 104.

“The presumption of malice ... is not technical or artificial, . . . but is the result of a mode of legal reasoning which is of general application.” Page 105.

Counsel for plaintiff in error freely admits that the law is as thus stated as applied to murder at the common law, but insists that the rule is different under our statutory system. No very good reason is advanced to support that idea, and no authority in support thereof is cited. Murder at the common law was susceptible of being established solely by the presumption arising from the fact of killing by an unexplained act naturally and probably calculated to produce death. That was laid down distinctly as early as King v. Woodburne, in 1722, 16 How. St. Tr. 54. We see no room for Folding that such ancient rule, which, obtains to this day, admittedly, as to murder at the common law, does not apply to our statutory murder in the first degree, since that includes every intentional killing of a human being by another, not justifiable or excusable. Decisions made under systems unlike ours necessarily cannot affect the question. The law is-different in the 'state of Ohio, and perhaps in other states. The difference in Ohio, however, grows solely out of the fact that intentional killing under the Ohio statutes is a characteristic of murder in the second as well as in the first degree. In that situation the court held that the presumption of intention to take human life arising from an unexplained homicide should only go to the lowest degree of the offense in which the intent to kill was essential. State v. Turner, Wright (Ohio) 20.

Now, while the jury were warranted in finding many evi-dentiary circumstances corroborating the legal presumption from the fact of killing by an act naturally calculated to produce that result, — which we have seen was of itself, unexplained, sufficient to support the finding of the taking of human life with malice aforethought, — we are unable to discover any evidence or circumstance tending to rebut the presumption except that tending to show absence of motive. True, there was a feeble attempt to show a probable accidental discharge of the pistol, and, certainly, from the circumstances of the homicide which we have detailed and the appearances thereafter the jury were fully warranted in giving little or no credence thereto. No explanation whatever was attempted of why the revolver was drawn on the defenseless woman at all; while the location of the wound and the absence of powder marks on the body of deceased or her clothing, and the entire absencé of anything about her person indicating a struggle with her assailants, show pretty clearly, as before indicated, that the weapon was aimed at a vital part of lier "body and was intentionally discharged by tbe person wbo beld it.

Mncb significance is claimed for tbe dearth of evidence showing any substantial motive for tbe commission of tbe offense. If in a case like this evidence of guilt were so weak as to necessarily leave a reasonable doubt in the mind on tbe question of guilt in tbe absence of any proof of motive for the deed, that circumstance would have all tbe significance claimed for it; but such is not tbe situation here. . Absence of motive in a doubtful case is always significant and may be of controlling import. But where tbe evidence, in tbe Judgment of tbe jury, clearly establishes an intention, without justification or excuse, to destroy human life, tbe fact that no adequate or any motive can be assigned for tbe deed does not militate against such act being criminal, nor against the degree of criminality being tbe highest known to tbe law. A conviction is never to be disturbed merely for want of motive where there is credible evidence of guilt. 1 McClain, Grim. Law, § 416. Tbe expressions of courts on this subject are numerous and harmonious. In Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, it was said, in effect: 'Proof of motive for tbe crime is not indispensable to conviction; for murder may be inferred from tbe mere fact of killing; but tbe absence of evidence suggesting a motive is a circumstance in favor of tbe accused to be given such weight as tbe jury may deem proper. In Clifton v. State, 73 Ala. 473, tbe court said:

“Tbe presence or absence of a motive for tbe commission of tbe offense charged is always a legitimate subject of inquiry. . . . But it is not in any case indispensable to a conviction; it is not an element of tbe burden of proof tbe law' devolves upon tbe prosecution, whether the agency or connection of tbe accused is manifested by direct and positive evidence, or only by circumstantial evidence, that a motive, or inducement, to commit tbe offense should be proved. The criminal act, and tbe connection of tbe accused with it, being proved beyond a reasonable doubt, tbe act itself furnishes tbe evidence, that to its perpetration there was some cause or influence moving the mind.”

In McLain v. Comm. 99 Pa. St. 86, 99, the court, speaking on the same subject, said:

“The commonwealth was not bound to establish an adequate motive for the alleged crime. . . . The fact of murder being established the inability to discover the motive does not disprove the crime.”

Thus it will be seen that while it is competent for the prosecution in a case of this kind to show motive, it will not of itself establish the charge; and while it is competent for the defense to establish want of motive, it does not constitute a defense, nor necessarily rebut evidence by itself satisfactorily establishing the guilt of. the accused even so as to raise a reasonable doubt on the question. Presence or absence of motive in any case, as indicated, is but a mere evidentiary circumstance to be given just such weight by the jury as they deem the same entitled to under all the circumstances. So here, the failure of the prosecution to show any motive for the commission of the offense charged against the accused is of little moment, the jury having presumably given due weight thereto and the evidence being sufficient, notwithstanding the absence of any discoverable motive for the offense, to warant the verdict which was rendered.

Counsel for plaintiff in error, to sustain his contention that the verdict of the jury was not warranted by the evidence, points with confidence to the proof of previous good character of the accused up to about a year before the commission of the offense. We must say that such evidence of good character was entitled to very little if any weight in view of the proof that the accused was a man of mature years, more than ordinarily bright, a man capable of earning upwards of $60 per month at mechanical labor, and yet that be took for his wife a common prostitute knowing her character, and. thereafter encouraged her to continue her immoral life, he profiting by the fruits thereof, and it further appearing that he indulged in going about the country, beating his way on railroads and living the life of a common tramp. However, at best the evidence of good character did not constitute a defense. Counsel for the accused of course -does not claim that for it. It was entitled to just such consideration as the jury thought proper to give to it under all the circumstances of the case, — no more and no less. The fact of previous good character, like that of absence of motive for the commission of the crime, is of no significance in any case in the face of satisfactory evidence of guilt, in the judgment of the jury, after giving due weight to such previous character. We must assume that there was such satisfactory evidence in the judgment of the jury in this case, since there is nothing to indicate that they did not give due weight to all the evidence produced before them. If they believed from such evidence beyond reasonable doubt that the accused committed the offense charged against him, it was their duty to render the verdict which they did, though they could not discover any motive for the deed, and though they believed that prior to the-commission of the offense his character was inconsistent with such commission.

The only error assigned to rulings on evidence is that the court erred in granting a motion to strike out an answer which it appears was not responsive to any question asked. Arnold Lunt, after qualifying to testify as to the reputation of the accused as a peaceable, law-abiding citizen prior to the commission of the offense, in answer to a proper question said that it was good. Counsel for the accused, apparently to cause the witness to emphasize his answer to this question, asked: “His reputation in that respect was good ?” ' referring to the reputation of the accused as a peaceable, law-abiding citizen, to which witness said: “In every respect it was good.” That answer was clearly subject to the motion to strike out. Tbe motion was general. Tbe specific ruling of tbe court was tbat tbe answer should be stricken out so far as not responsive to tbe question. True, tbe court said in connection tberewitb tbat tbe inquiry in respect to tbe 'character of tbe .accused was only competent in respect to bis reputation as being a peaceable and law-abiding citizen ; but tbe ruling was as indicated. An exception to tbat did not raise the question which counsel argues. Whether tbe saying, as to a person on trial for tbe crime of murder, tbat only bis character as a peaceable and law-abiding citizen is involved, is strictly accurate, does not seem to arise so as to require discussion or decision.

Tbe learned circuit judge, in tbe instructions to tbe jury, recited numerous facts as to which tbe evidence was all one way and which were unquestionably established, in which bp said tbat after tbe homicide tbe accused and bis companion walked back to Stanley. Counsel insists tbat such recital was an invasion of tbe province of tbe jury and was clearly prejudicial to tbe accused in respect to tbe statement tbat be and bis companion walked back to Stanley, tbe testimony being tbat they ran back, indicating mental excitement. As to tbe general claim tbat it was error for tbe court to speak of facts as established in respect to which there was no debatable question, tbat was not an invasion of tbe province of tbe jury. Strictly speaking, tbe statement made by tbe learned court tbat tbe accused and bis companion walked from tbe (TDell place to Stanley was contrary to tbe evidence. Tbe only testimony on the subject was tbat of accused and bis companion-' It is true, as counsel for plaintiff in error states, tbat both testified tbat they ran. However, we fail to see bow the jury could reasonably have been prejudiced by such inaccurate statement. Tbe men returned on foot to Stanley immediately after tbe homicide. In all reasonable probability, in view of tbe evidence, which was undisputed and very plain, tbat is what tbe jury understood was in tbe mind of tbe court. - Tbe act of running back to Stanley, after tbe homicide, in a state of excitement, was certainly more indicative of guilt than would have been an act of walking back with tbe unconcern which tbe language of tbe court would indicate, taking tbe same in its literal sense. However, as before indicated, tbe evidence being plain and all one way that tbe accused and bis companion returned to Stanley on a run, tbe jury must have understood tbe court merely to .mean that they returned, as they in fact did, on foot.

Error is claimed because tbe court instructed tbe jury:

“There is no evidence in this case that tends to show, nor is any such claim made in tbe defendant’s behalf, that tbe -defendant killed tbe deceased under circumstances such as rendered such killing either justifiable or excusable. On tbe ■trial tbe defendant insists that be did not in any way contribute to tbe death of Mrs. O’Dell. Tbe question therefore' is to be determined by you from tbe whole evidence in tbe ease, considered within appropriate legal rules as here stated by tbe court: Did tbe defendant shoot and kill Mrs. O’Dell, and, if be did, then was such killing perpetrated pursuant to ■a premeditated design by tbe defendant to take her life ?”

That assignment of error raises tbe question of whether tbe court was warranted in taking from tbe jury tbe question of whether tbe killing of Mrs. O’Dell was justifiable or .excusable. We are unable to perceive why tbe court was not so warranted, and tbe instruction objected to strictly proper. Counsel made no attempt to point out anything in tbe evidence indicating justifiable or excusable homicide. Tbe whole attitude of tbe accused, from first to last, was, as tbe ■court said in tbe instruction, inconsistent with any other theory than that be was guilty of murder in tbe first degree or not guilty. ITis story was that be did not do' tbe deed or have any concern with it. There was no room whatever in tbe evidence, in any reasonable view of it, for a finding that be bad any legal excuse or. justification for killing tbe woman or injuring ber in any way whatever. In that situation tbe court was justified, in fact it was its duty, to fence in tbe considerations of tbe jury as was done. A court in charging tbe jury in a criminal or any case is by no means confined to a mere statement of abstract principles of law applicable to tbe evidence. It may properly speak of evi-dentiary facts as established, as before indicated, as to which tbe evidence is so conclusive as not to leave any room for debate in respect thereto, and thus bring tbe minds of tbe jury to a definite understanding of tbe particular primary subjects for their consideration before taking up tbe ultimate issue of whether tbe accused is guilty or not. This and other courts have often held that where tbe evidence in a prosecution ■ for .murder in tbe first degree will support tbe full charge, and in no reasonable view of it will support a conviction for any less homicidal offense, it is competent for tbe trial judge to say that to tbe jury and to direct them to restrict their deliberations accordingly. Fertig v. State, 100 Wis. 301, 75 N. W. 960; Dickerson v. State, 48 Wis. 288, 4 N. W. 321; State v. Kilgore, 70 Mo. 548; State v. Stoeckli, 71 Mo. 559. Tbe limitation upon tbe right of a trial court to speak of facts as established in charging a jury has often been said to be that it must stop where in any reasonable view of tbe evidence there is room for debate as to where tbe truth lies. Benedict v. State, 14 Wis. 423; Hill v. State, 17 Wis. 675; Dingman v. State, 48 Wis. 485, 491, 4 N. W. 668; Salladay v. Dodgeville, 85 Wis. 318, 326, 55 N. W. 696; Little v. Iron River, 102 Wis. 252, 78 N. W. 416. Tbe general view of this subject as held by tbe highest courts of tbe country is summed up in 11 Ency. Pl. & Pr. 116, thus r

“An instruction which assumes the existence or non-existence of material facts in issue invades the province of the jury, and is erroneous if there be any evidence in conflict with such assumption.”

That statement could he improved upon, it seems, by using the expression: “If there is any evidence or want of evidence in conflict with such assumption,” since.the court cannot properly assume the existence of a material fact merely because there is no negative evidence on the subject. The assumption in a criminal case must he based upon evidence establishing the fact so conclusively, as said in the decisions of this court before cited, as to leave no room for debate on the subject.

* There is a further answer to that feature of the assignment of error last discussed which relates to the court instructing the jury to consider only the question of murder in the first degree : that, according to'the repeated rulings of this court, the accused was not prejudiced, since no request was made for submission to the jury of other degrees of homicidal offenses than murder in the first degree. A general exception to the submission of only murder in the first degree did not raise the question of whether the lesser degrees of homicidal offenses should be submitted. The only way that could be done was by specially requesting the court to instruct the jury as to the lesser degrees. Odette v. State, 90 Wis. 258, 62 N. W. 1054; Fertig v. State, supra; Dickerson v. State, supra. True, it is the duty of the court in the trial of such a case as this, to instruct the jury as to every homicidal offense to which the evidence, in any reasonable view of it, can apply. Hempton v. State, 111 Wis. 127, 86 N. W. 596. But, just as true, it is its plain duty, if the evidence in any such view will not support a conviction of any other homicidal offense than murder in the first degree, to say so to the jury.

The court refused to grant the request of counsel for the accused to instruct the jury that:

“It is your duty to scrutinize the evidence in this case with the utmost caution and care, bringing to that duty the reason •and prudence ■which yon would exercise in the most important affairs of life, in fact all the judgment, caution and discrimination you possess, and then, unless you can say from that standpoint that the evidence fails to impress your minds with any reasonable doubt of the defendant’s guilt, you should acquit the accused and render a verdict of not guilty.”

The refusal of the court seems to have been based upon the .ground that the idea intended to be conveyed by the request was embodied" in the general charge by the following language:

“The jury are by law made the sole and responsible judges of the evidence; it is their duty to determine the weight and effect of the evidence as a whole and, as necessary to such determination, to recall and weigh the testimony of each witness and judge his or her credibility as best they can in the light of the whole facts as disclosed by the evidence. . . . In the performance of this duty, that of scrutinizing the evidence and determining its effect, you should exercise the utmost caution, employ all the reason, prudencé, judgment and discrimination that you possess and would summon to your own aid in the most important affairs of life. Having done this, if there then remains in your mind no reasonable doubt of defendant’s guilt, you should convict him; otherwise you should acquit him.”

Waiving for the moment the question of whether the requested instruction as a whole was a correct statement of the law, we will examine the counsel’s contention. He concedes that the language used by the trial judge was a full equivalent for that requested save for the omission of the word “care.” This court has not put its stamp of .approval, nor has any other court, upon the precise language of the requested instruction, as to the use of that word, but has said repeatedly that the idea expressed in such instruction should be given to the jury, and if not given when requested the refusal constitutes reversible error. We are unable to see any substantial difference between the language of the court and that which, was requested. Perhaps it would be better to use the term “care and caution.” If so, that would not constitute reversible error if the correct idea was in fact, in appropriate language, given to the jury. It would seem that when a jury is told that in examining the evidence they “should exercise the utmost caution, employ all the reason,, prudence, judgment and discrimination that you possess and would summon to your own aid in the most important affairs of life,” there is nothing more that could be added. That seems to include the idea of utmost care and caution amplified so as to more clearly impress the idea upon the minds of the jury than would be done by the mere use of the term which counsel seems .to think should have been used. In addition to the language last quoted, as will be noted, the jury were told that they should weigh the evidence of each witness “as best they can.” There again, it would seem that they were told, in effect, that they should scrutinize the evidence with the utmost care and caution. On the whole we-are unable to see any infirmity in the instruction along the-line claimed by counsel for plaintiff in error. On the other hand it would seem that the requested instruction is not a correct statement of the law. The concluding part of the-request seems to be fatally ambiguous, to say the least. This is the language to which we refer:

“Unless you can say from that standpoint that the evidence fails to impress your minds with any reasonable doubt of the defendant’s guilt, you should acquit the accused and render a verdict of not guilty.”

That would commonly be understood as meaning that, unless the evidence creates a reasonable doubt in the minds of the jurors as to the defendant’s guilt he is entitled to an acquittal; while of course the law is that unless the evidence fails to impress the minds of the jury beyond every reasonable doubt of the defendant’s guilt he is entitled to an acquittal. Tbe languagé of the trial court’s instruction on that subject was very plain and strictly accurate. He said:

“If there then remains in your mind no reasonable doubt of tbe defendants guilt, you should convict him; otherwise you should acquit him.”

Error is assigned on the refusal to give this instruction:

“The witness, Ole Gustad, according to his own statements, if they are true, was either an accomplice or an accessory after the fact. In such cases, courts advise the jury that, while they may convict on the uncorroborated testimony of such person, it is dangerous to do so and the evidence should be scanned with great care and caution, and so the court instructs you in this case.”

It is sufficient, it seems, to justify the refusal of that instruction that it assumes that there was no evidence whatever in the case that the accused committed the offense other than that of Gustad. True, his was the only direct evidence on the question, but there was much circumstantial evidence pointing the same way, so that it was not proper to state ‘to the jury that the state’s case rested on the uncorroborated testimony of Gustad.

Further complaint is made that the court failed to instruct the jury in respect to the evidence tending to show that the character of the accused prior to the commission of the offense was inconsistent therewith. No request in writing was presented by counsel for the accused to be given by the court to the jury on the subject, so no proper foundation was laid for an exception to the failure of the court to instruct in respect to the matter. The rule is now firmly established that where the charge of the court does not cover all phases of the case counsel is bound to call its attention to the omission by an appropriate request or be precluded from making such failure available as reversible error. U. S. Express Co. v. Jenkins, 64 Wis. 542, 25 N. W. 549. That a mere verbal request made to the court for an instruction upon a particular subject is not an appropriate request within the meaning of tbe decisions, cited, was pretty clearly beld in Karber v. Nellis, 22 Wis. 215, where this language was used:

“If counsel desire a specific instruction on any particular point, they should draw such instruction and ask the court to .give it. A mere request to charge more particularly upon some point, does not present any question for review here.”

In a very late ease, Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249, opinion by Mr. Justice Dodge, sec. 2853, Stats. 1898, was construed as requiring requested instructions to be presented to the court in writing. It was said, in effect, that the section contemplates such a presentation of a request as a condition precedent to the duty of the court to consider it. The significant language of the statute which led to that construction is this:

“Each instruction asked by counsel to be given to the jury shall be given without change or modification the same as asked or refused in full.”

It was held that such language plainly indicates that the legislative idea was that requests to charge must be made in writing, each proposition being stated in the exact language which it is desired the court shall use, and that the court shall rule upon the precise statement of the law thus presented. So it was held that specific error can be assigned “upon a refusal to instruct a jury” only when such refusal •relates to “an instruction formally requested in writing.”

After verdict a motion was made for a new trial upon the grounds heretofore discussed, and, among others, that Charles Vick, one of the trial jurors, contrary to his statement under oath upon his examination on the voir dire, prior to his having been called as a juror having formed and expressed an opinion that the accused was guilty. In support of such motion Richard Townsend testified that he was the proprietor of a barber shop in Neillsville where the cause was tried; that Charles Vick, the juror, during the trial of Gustad and thereafter, visited his shop on two or' more occasions and there conversed as to both Gustad and Gupps and whether they were guilty or innocent; that on the first visit the trial of Gustad was about to be concluded; that Vick then said in conversation with, or in the immediate presence of, one Jackson, one of Townsend’s employees, and in the hearing of Townsend, that he thought both Gustad and Gupps were guilty; that if he was on the jury he would so find. The witness said he was not then acquainted with Vick; that there were several persons in the shop,. all the chairs being occupied; that during the trial of both Gupps and Gustad conversation in the shop was general in regard to the cases; that Vick visited the shop some days after the Gustad trial was concluded and when that of Gupps was about to commence, when he expressed the opinion that he would not be on the case because he heard the Gustad trial; that he Avas drawn for that trial and stricken off; that after the verdict was rendered against Gupps Vick again visited the shop, when the witness heard him say that he served as one of the jurors thereon; that he told the attorneys when he Avas called that he heard the Gustad trial and expected they would strike him off but that they did not. The witness said, further, that on all the occasions mentioned he merely overheard the statements to which he testified; that he did not himself have any conversation with the juror. Jackson, being sworn as a witness, testified that on the first occasion he remembered of Vick visiting the shop, all ,he said about the Gustad case Avas that he had been excused therefrom. Jackson further said that he did not remember of hearing Vick at any time make the statements testified to by Toavii-scnd; that on the occasion of Vick’s visiting the shop just before the Gupps trial he merely said he did not think he would be drawn, as he heard the evidence in the Gustad trial; that Vick visited the shop after the Gupps trial, but that he could not recall anything the juror then said in respect thereto. George L. Jaques testified to having heard Vick say after tbe Gupps trial that be stated-on bis voir dire tbat be beard a portion of tbe testimony on tbe Gustad trial, or formed some opinion, or something of tbat sort, and was surprised tbat they left bim on tbe jury. Robert J. Glass testified tbat just after Vick bad been struck off tbe Gustad jury be beard tbe latter say in tbe barber sbop tbat be was glad of baying been so struck off and tbat it was bis opinion tbat both Gustad and Gupps should be punished. Vick testified tbat be did state in Townsend’s sbop tbat be bad been struck off tbe Gustad jury, or tbat be beard part of tbe trial of Gustad; tbat be did not state prior to Gupps’ trial in such sbop or any where else, to any one, tbat Gustad and Gupps were both guilty or tbat Gupps was guilty; tbat he did not bear tbe testimony in tbe Gustad Case; tbat be was excused after tbe jury was impaneled, and went borne, coming back about as such trial was concluded; tbat be beard tbe arguments of counsel and so stated on bis voir dire when called in tbe Gupps Gase; that be stated on one occasion tbat, whoever tbe guilty party was who killed tbe O’Dell woman, be should be punished, not stating whether in bis opinion Gupps and Gustad or either of them did tbe deed. Upon tbat testimony tbe court held tbat Vick did not make any false statements when examined upon bis voir dire in tbe Gupps Gase, and bad not prior thereto formed or expressed any opinion as to Gupps’ guilt or innocence. There was evidence both ways on tbe question. Tbat presented for determination a question of fact. Tbe decision reached has all tbe conclusiveness upon this appeal of tbe determination of a trial court upon any issue of fact. Tbat is, it cannot be disturbed unless it satisfactorily appears from tbe record to be against tbe clear preponderance of tbe evidence. Carthaus v. State, 78 Wis. 560, 47 N. W. 629. Evidence to impeach a verdict by attacking tbe fairness of a jury in such circumstances as tbat attempted in this case, to be effective, should be very clear and satisfactory. Tbs court should not act upon it favorably to impeaching the verdict in the face of an unequivocal denial of the juror, in the absence of the most clear and satisfactory evidence of the falsity of such denial. After verdict, especially in a capital case, the interests at stake, tempting an attack upon some particular juror, are so great, the ease with which such statements as those claimed here, made in casual conversations,- may be varied honestly or otherwise, and thus a prima facie case be presented where none exists in fact, that all such evidence should be scrutinized with the greatest caution and care before passing judgment favorably thereto. The evidence against juror Vick was substantially all as to mere casual conversations. His unequivocal denial was opposed only by the evidence of one witness. There was definite evidence of two distinct statements made by him, one heard by Townsend upon the last day of the Gustad trial, and one by Glass upon the day the jury therefor was impaneled. It seems quite clear that the occasion testified to by Townsend was not the one testified to by Glass. So in each instance there was the evidence of the juror against that of one person, such opposing person not being definitely corroborated by any circumstance whatever, while the juror had in his favor a strong presumption of innocence. The witness Jackson, who, according to Townsend, would be most likely to have remembered the statement made by Vick which Townsend testified to, if it were in fact made, stated that he could not recall having heard the latter make any such statement. The testimony that Vick said to Jaques and others that he heard the evidence upon the Gustad trial is quite effectually overborne by the circumstance that he was not present during the taking of the evidence. He denied having stated, understandingly, that he heard the evidence but admitted being present during the argument to the jury. The effect of Jaques testimony is that the juror claimed that the statements made in his presence or to him in respect to such juror’s knowledge of the Gustad trial, were substantially the same as be made upon the voir dire when called in the Cupps Case, and there does not appear to be any definite evidence that such is not the case. It hardly needs argument to demonstrate that the finding of the trial court against the charge of unfairness as to juror Vick, upon' such evidence cannot be disturbed. There is at least clear warrant for saying that such, finding is not against the clear preponderance of the evidence. It seems that if such evidence would warrant granting a new trial because of the unfairness of a juror, there would be very little stability to verdicts in cases of great public and private interest, such as this.

Further complaint was made on the motion for a new trial, because one Cornelius, the register of deeds of Clark county, while on the way to his office passed the jurors on one occasion during the trial, in front of the courthouse, and that as he did so he said good morning and handed the officer in charge of them $1.25 or $1.50, with a request that he should expend the same for cigars for their use, and that the officer acted accordingly. There was evidence that Cornelius was in no way interested in the case, and that the act was purely one of goodfellowship which had no baneful influence Avhat-ever upon the jury. True, it would be better if no such attentions to a jury, especially while engaged in such an important trial as this, should occur. However innocent the person giving them may be, they are highly improper, and the conduct of the officer consenting thereto or participating therein is highly reprehensible. However, the presumption of prejudice from the transgression in the circumstances of this case was such as to yield quite readily to rebutting proof; and it was most thoroughly rebutted, as it seems to us. The officer in charge of the jury frankly related all the circumstances connected with the transaction, showing that Cornelius made no effort to talle with the jury; that his conversation was wholly with such officer except that he said good morning to the jurors; that his handing the money to the officer to buy cigars for the jurors was a mere frieudly act. sucb as be was accustomed to do, and that such officer asked the trial judge whether he should give the cigars to the jury or not.' The circumstance as explained was of trifling character, — certainly not one that would warrant disturbing the verdict of a jury under the rules laid down in the opinions of this court. Hempton v. State, 111 Wis. 127, 86 N. W. 596. The conduct of Cornelius and the officer presents none of the elements of gross misconduct sometimes severely criticized by appellate courts and sometimes held fatal to the verdict.

We have now considered one by one all the propositions presented by counsel for plaintiff in error, and endeavored to respond fully to his appeal for a careful, critical and thorough examination of the case to the end that if the accused has not had a fair trial he might be relieved from the judgment rendered against him. In our judgment there is no-error in the record. The trial seems to have been exceptionally clean and fair, from beginning to end, and the result must stand so far as judicial relief is concerned.

By the Court. — The judgment is affirmed.

The plaintiff in error moved for a rehearing.