Fertig v. State

75 N.W. 960, 100 Wis. 301, 1898 Wisc. LEXIS 204

• Court: Wisconsin Supreme Court
• Decided: June 23, 1898
• Status: Published

Opinion

Marshall, J.

The errors assigned on behalf of plaintiff in error will be considered in their order and are as follows: (1) The refusal of the court to strike out evidence of conversations damaging to the accused where a witness could not give all the conversation, or the substance of it; (2) permitting the prosecuting attorney to use improper language, detrimental to the accused, in closing his argument to the jury; (3) permitting reading from the reporter’s minutes, the testimony of the accused on former trials for the same offense, without any verification of the same; (4) instructing the jury that the defendant was guilty of murder in the first degree or not guilty; (5) refusing to submit to the jury the question of manslaughter in the second degree as requested.

1. The rule that all parts of a conversation, bearing on the subject in controversy, must be taken together, and that if the whole of it, in substance at least, cannot be given, so that its bearing on such controversy, from the standpoint of the party offering it, can be established, the whole shall be excluded, is familiar; but that does not require that a witness testifying to a conversation shall remember it all, either literally or in substance, but only that he shall remember that part relative to the controversy. If a witness can testify to a part of a conversation, sufficiently complete of itself to show its bearing on the fact in issue, or some evidentiary fact in the case, that is sufficient, though other things were said, which the opposite party may call out on cross-examination, so far as they in any way explain or modify that part testified to in chief; and though the other party to the conversation may be called and his version of it be given. The rule does not go so far as to exclude damaging admissions or declarations made in a conversation, because all said cannot be remembered. All the conversation, or the substance of it, which shows the bearing of the damaging statement as to the fact in issue, or the evidentiary fact sought to be established, must be given or all excluded; but that being satisfied, the evidence is admissible.

Yiewing the alleged objectionable evidence in the light of the foregoing, no reason is perceived for holding that error was committed in refusing to strike it out on motion of counsel for accused. Moreover, if that testified to by any one witness was not sufficiently complete in itself to be admissible, it was made so by the testimony of others to the same conversation, the testimony of all showing substantially the whole conversation. It is not necessary that all the parts of a conversation be testified to by one witness to make any part of it admissible; part may be established by one and part by another, so as to render the whole admissible, if, taking the parts together, they show what was said with reasonable distinctness, bearing on the fact in dispute, or any fact tending to establish the fact in issue by reasonable inference, under the established rules governing the subject. People v. Ah Wee, 48 Cal. 236. As said, in effect, by Mr. Justice Taylor in Mack v. State, 48 Wis. 271, each party may give his own version of a conversation, and if one gives a part sufficiently complete to be material to the case, the other has a right to prove the balance. That, of course, he may do by cross-examination or by other witnesses. Here the evidentiary fact sought to be established by the prosecution was that the accused had ill will towards William Spaulding, and threatened to kill him or any one who attempted to take the wood, which was the subject of controversy leading to the homicide. That part of the conversation showing such facts was remembered in substance, and testified to distinctly and positively, and was properly received.

2. The prosecuting attorney was permitted to say, in closing the case to the jury, replying to remarks of the attorney for the accused regarding the testimony of William Spaulding : “ What would counsel have him do ? Come here and shower bouquets on the assassin of his brother ? Crown him with a wreath of laurels ? ” And also permitting the district attorney to say, in substance, that there was murder in the heart of the accused as he proceeded to and effected the homicide,— that he had murder in his heart, in his eye, and in his brain; that he stood where the tracks indicated to get a good aim; the object of his vengeance was coming, sitting on the wood in full view; he (the accused) was a crack shot and knew it; he cocked his gun, drew the bead on the deceased, and the deed was done, and a son and brother was sent to his Maker without a moment’s warning, by the act of an assassin,— as vile an act as ever happened on earth; so foul that it would be worthy of the vicegerent of the monarch of hell. That such language, with the earnestness with which we may well assume the words were uttered in the closing moments of an important trial, was highly calculated to carry the jury along the line of thought which it indicated, that is, that the accused was guilty, cannot be doubted; but whether it was outside the case, or tended unfairly to influence the jury, and to swerve them from the duty of deciding the case on the evidence, and that alone, in the light of the law governing the subject, is quite another question. So long as counsel did not depart from the evidence produced, but confined his argument to reasoning from that up to the conclusion that it established guilt, however eloquently and persuasively he may have handled his subject, it was not only legitimate but commendable. Within the record in this regard, the field is broad, and the license of the advocate, and duty as well, permits him to say with the utmost freedom what the evidence tends to prove, and that it convinces him, and should convince the jurors as well, of the fact in issue. As said in People v. Hess, 85 Mich. 128: “ To deny to a prosecuting officer that privilege, would be to deny him the right to place before the jury the logic of the testimony which leads his mind to the inevitable conclusion of guilt, and which he has a right to presume will lead them to the same conclusion, if they view it as he does.” That does not mean that a prosecuting officer may express his opinion independent of the evidence that the accused is guilty, or his opinion of guilt, which may or may not be based on the evidence, hut that he may state from the record, upon which the issue is to be submitted to the jury, that it establishes guilt. To do the latter is but to state the evidence, draw inferences therefrom, and proceed, reasoning naturally from step to step up to the logical conclusion, and state it, all being legitimate parts of legitimate argument; and if the introduction and discussion lead to such conclusion, though stated with great earnestness and with strong feeling and conviction, so long as the advocate keeps within the record, the accused has no legitimate ground of complaint. That appears to be what was done in this case. There is nothing to indicate that the district attorney asserted that the accused was a murderer or assassin, except with reference to the offense for which he was being tried, and as he drew that conclusion from the evidence. It was the inevitable conclusion of the line of argument pursued by the prosecutor, from the evidence, and could not have been otherwise understood by the jury. It is quite unlike Scott v. State, 91 Wis. 552, where the district attorney spoke of the accused as a thief, not with reference to the offense for which he was on trial, but as a fact tending to establish guilt of that offense.

As to remarks made in reply to those of the attorney for plaintiff in error, regarding William Spaulding, it is sufficient to say that in using the term “ assassin ” it is quite clear that the district attorney was speaking from the évidence in the case as he viewed it, and that the jury must have so understood him. He had a right to assume that the evidence produced on the part of the state was true, and that it established what it tended to establish, and that it pointed most strongly to the guilt of the accused as charged. To address the jury accordingly can hardly be said to have been such an abuse of the privilege of counsel for the state, and so prejudicial to the accused, as to warrant a reversal of the judgment. True, harsh and violent language should not be used by counsel, certainly in criminal prosecutions, though whether language be harsh and abusive depends largely upon the evidence in the case; but in the absence of some manifest abuse of the privilege of legitimate argument, clearly working prejudice to the accused, it cannot be considered reversible error. In Spahn v. People, 137 Ill. 538, where the evidence on the part of the state established the guilt of the accused, the court held that, assuming the truthfulness of the people’s evidence, which assumption the prosecuting attorney had a right to make on the argument, it was not such an abuse of the privilege of counsel in argument to the jury, to speak of the accused, with reference to the offense for which they were on trial, as robbers and burglars, as to work a reversal on that ground. So we may say it was not an abuse of the rules of legitimate argument, in this case, to speak of the accused, from the evidence of the state, as a murderer.

3. It is sufficient to say of the contention that it was error to permit the reading in evidence of the unverified, unauthenticated stenographer’s minutes of the evidence of the accused, given on former trials, that no objection was made to it; on the contrary it seems to have been consented to.

4. No request was made to submit the question of murder in the second degree, so no error can be successfully assigned in that regard. Odette v. State, 90 Wis. 258. That seems to be a sufficient answer to the suggestion that the trial court should have instructed the jury respecting that degree' of criminal homicide. Moreover, the instruction given to the effect that the defendant was guilty of murder in the first degree, or not guilty, was favorable, rather than prejudicial, to the accused, if there was evidence on which he might have been convicted of the lesser offense. The jury having been properly instructed as to the essential elements of murder in the first degree, an instruction that the accused was guilty of that offense, or not guilty of any, was equivalent to a direction to the jury to acquit him, unless they found that the highest offense of criminal homicide was established by the evidence. It follows that, if there was error in not submitting murder in the second degree, it was not prejudicial, hence not reversible error. Dickerson v. State, 48 Wis. 288; Winn v. State, 82 Wis. 571; Odette v. State, supra.

5. The contention that the trial court erred in not instructing the jury respecting manslaughter in the second degree, as requested, is divided into, (a) If the accused unnecessarily killed Spaulding while endeavoring to take from his possession wood which he wrongfully detained from the accused, would that warrant a conviction of manslaughter in the second degree ? and (b) Was the evidence sufficient to warrant a reasonable belief that the homicide was unnecessarily perpetrated while the accused was resisting an attempt on the part of the deceased to assault the accused with a stick of wood?

(a) Both of the questions suggested in the foregoing refer to the statutory offense of manslaughter created in the following language: “ Any person who shall unnecessarily kill another, either while resisting the attempt by such other person to commit any felony or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.” It is urged on behalf of the plaintiff in error that the deceased was committing an unlawful act within the meaning of the statute, in that he would not give up, but was persisting in retaining, the wood, and that there was evidence from which a jury might reasonably say the act of killing was unnecessarily done in resisting such unlawful act. The weakness of this contention is that there was no unlawful act on the part of the deceased, within the meaning of the statute, in process of being committed, or which had been attempted and failed, at the time of the homicide. Looking at the case most favorably for the accused, if any unlawful act was committed by Eobert Spaulding at all, it was a mere trespass, and fully consummated when the wood was removed from the wood lot. At the time he met Fertig. he was lawfully traveling on the highway and could not be lawfully dispossessed of the wood by force. The mere retention of the wood after the trespass was committed and the deceased had left the wood lot, was not unlawful in the sense that the accused had a right to resist it; and rightful, lawful resistance is what the statute means, excessive and unnecessary force causing death in making such rightful resistance, or after such resistance would have been rightful, being the element that renders the homicide criminal in the degree named in the statute; and it does not include killing with, a deadly weapon, intentionally, because of any mere trespass to property rights. People v. Divine, 1 Edm. Sel. Cas. 594.

(b) The only evidence of any act on the part of the deceased, warranting the accused acting in self-defense and resisting such act, is Holstrom’s evidence as to the accused having stated that the deceased picked up a stick of wood to strike him. If a jury could say, on the most favorable view that could reasonably be taken of that evidence, that the deceased was committing an assault upon Fertig, and that tbe homicide took place in resisting such assault, then it was error not to instruct on the subject of manslaughter in the second degree. There would then have been the element of unlawful act, rightful resistance of such unlawful act on the part of the accused, and the unnecessary and excessive use of force in making such resistance, resulting in death, necessary to manslaughter in the second degree. But the evidence does not warrant an inference that the deceased assaulted Ferbig. The statement was that the deceased picked up a stick of wood to strike, not that he attempted to strike him, or that any act was done calling for defense. There is nothing in the evidence, taking it most strongly for plaintiff in error, indicating more than that the deceased picked up a stick of wood. There is nothing to show that he raised the stick of wood and attempted to strike, or was in a situation to have effected an attempt of that kind, so we may safely say that, taking the evidence as establishing what it tends to establish, Spaulding’ merely picked up a stick of wood to strike with, when the accused tried to stop the team. Certainly, that was not an unlawful assault, and not an unlawful act warranting any resistance at all upon the part of the accused. But if it were otherwise, the theory that any such thing occurred is contrary to Ferbig's relation of the homicide on previous trials, as well as on the last trial, and the whole theory of the defense, from first to last, which was that the shooting was accidental. So, looking at the evidence as a whole, and the attitude of the defense at the close of the trial, when the court was called upon to submit the case to the jury, there was no room for a reasonable belief that the deceased assaulted or attempted to assault Fertig. All probabilities are so against such a theory as to leave no room for a reasonable doubt on the question. The statement of the accused to Holstrom, as testified to by the latter, was not only denied by the accused, but the fact itself was denied, and the theory that any such thing took place was rebutted and disproved as completely, almost, as human testimony could do it.

It is only where there is evidence tending to establish a particular offense of criminal homicide that the trial court is required to instruct the .jury in regard to it. Dickerson v. State, 48 Wis. 288; Knoll v. State, 55 Wis. 249; Terrill v. State, 95 Wis. 276; 9 Am. & Eng. Ency. of Law, 741, and notes. When, on the evidence, the accused is clearly guilty of murder in the first degree, or not guilty, it is not only the right, but the duty, of the court to so instruct the jury. Dickerson v. State, supra; State v. Kilgore, 70 Mo. 546; State v. Stoeckli, 71 Mo. 559.

What has been said disposes of all questions submitted for our consideration without discovering any error in the record. The case appears to have been fairly tried, submitted to the jury by instructions not only free from all reversible error, but free from reasonable criticism, and the verdict appears to have been fully justified by the evidence.

By the Court.— The judgment is affirmed.