Holmes v. State

102 N.W. 321, 124 Wis. 133, 1905 Wisc. LEXIS 45

• Court: Wisconsin Supreme Court
• Decided: January 31, 1905
• Status: Published

Opinion

Marshall, J.

A contention made on behalf of the plaintiff in error that the verdict is not sustained by the evidence ■seems to deserve but brief treatment. Sufficient is disclosed in the statement to indicate clearly that the jury had ample room for reaching the conclusion which they did. Counsel hold up to view the story of Holmes as to the occurrences characterizing his conduct on the occasion in question as a demonstration that he used his revolver in lawful self-defense — instead of challenging the sufficiency of the evidence tending to establish the offense charged to warrant the verdict, as should be done in such a situation. If the evidence in any reasonable view thereof which the jury had a right to take justifies the verdict, that is sufficient on a motion to set it aside as contrary thereto. There is ample evidence in the record showing that after the affray in the boiler room the accused went therefrom and was free to go from the premises undisturbed; that he knew the Walter boys and their associates supposed that ho had fully submitted to their insistence that he should leave the premises, and presently, at least, he was not in danger of being interfered with, unless he invited it; that George so regarded the situation and turned to go back to his work, while Holmes started, seemingly, to leave the grounds, but took such a direction as to place himself near to and in the rear of George, as related in the statement, when he suddenly drew his revolver and shot George, accompanying his act by expressions strongly suggesting a premeditated design to kill. Martin Walter’s evidence as to tbe circumstances of the shooting, which seems to be well corroborated by other witnesses,, is, in the main, as follows:

Holmes went out straight from the boiler house ten or twelve feet. George told him to get off the property. After they talked some minutes he said he would go. He was then three or four steps from George. The latter replied, “That is all we want of you.” George then turned and walked two or three steps towards the boiler house door, while Holmes started, apparently, towards Lawrence street. As the two made such movements Holmes passed in the rear of George and not far from him, when he pulled out his revolver and shot George, at the same time using some “cuss words.” He then turned on me and fired, saying “You too!” It is useless to argue in the face of such testimony given by several witnesses, in connection with the undisputed fact that the shot fired at George was directed towards a vital part of his person, that the jury were not warranted in finding that the act was characterized by intent, on the part of Holmes, to take human life, and not by lawful defense of his person.

The evidence abundantly shows that the manager of the brewery property, Ohi’istian Walter, and the employees under him, including the Walter boys, were hostile to Holmes and were of one mind in respect to prohibiting him from frequenting the premises, and that he reciprocated such hostile feeling. It abundantly appears that he knew the feeling of the Walter boys towards him was so intense that they were resolved to use force, if necessary, to prevent his coming upon the property. For the purpose of showing that when he went to the brewery on the day in question he knew, or had good reason to believe, his conduct was liable to cause a breach of the peace, and that he went, nevertheless, armed with a revolver and determined to use it upon the Walter boys or anybody interfering with his movements, papers in a judicial proceeding, wbicb bad been served upon bim, prohibiting him from entering the brewery or frequenting the premises, were received in evidence. Eor the same purpose evidence was received as to his having made threats to severely injure Christian Walter about five months prior to the assault, A. J. Schmidt, the bookkeeper, about the same time, and Ernest Eick and others, including the Walter boys, about some nine months before the assault. The testimony 'as to Christian Walter was stricken out. A question is raised as to whether, if the reception of the testimony was error, striking it out, under the circumstances, remedied the mischief. Further question is raised as to whether the evidence of Schmidt was proper, no ground of impropriety being suggested, and also as to whether the testimony of the witness Eick was not improper because of remoteness. It is suggested on the part of respondent that no proper exception was preserved to the ruling as to Schmidt’s evidence, and that in any event all the evidence was proper, and with that we cordially agree. It all had a material bearing on what the intent of Holmes was in visiting the boiler room and using his revolver under the circumstances before related. As we have seen, the evidence strongly indicates that he harbored ill will not against George Walter alone, but against the whole brewery outfit, or at least against the significant figures thereof. Under the circumstances, his conduct as to any of them was evidentiary of his purpose in visiting the property, armed as he was on the day in question. No sufficient answer is made to that phase of the case insisted upon by respondent.

We are referred to Paulson v. State, 118 Wis. 89, 94 N. W. 771, as in point, language from the opinion being quoted to the effect that in a criminal prosecution evidence of general bad character, or the -commission of other specific acts than the one in question, should not be permitted, “except when so connected with the offense that their connection directly tends to prove some element of the alleged offense/’ The exception is a conclusive answer to tbe contention of counsel for plaintiff in error. It is because tbe conduct of Holmes as to eacb person mentioned in tbe evidence complained of, including tbe Walter boys, sprang from ill will toward all, and was so connected witb tbe offense charged as to directly prove criminal intent, wbicb was vital to tbe maintenance of tbe charge in tbe information.

Complaint is made because tbe court instructed tbe jury in these words:

“In order to convict, it will be necessary to find from tbe evidence, beyond a reasonable doubt, three things: First: An assault on George Walter by tbe defendant. Second: That the defendant was armed witb a dangerous weapon. Third: That such assault was made witb tbe intent on the part of tbe defendant to kill and murder George Walter. Now witb reference to tbe first and second of these elements or ingredients of this crime, there is no dispute. Tbe defendant admits be fired tbe shot from tbe revolver wbicb struck George Walter, and that is not denied in any way. Tbe fact of tbe assault was present or is present, so as to tbe first two of these points I say there is no question.”

It is said it is not true that there is no question but that tbe accused assaulted George Walter; that tbe term “assault” in law is a wilful attempt to do bodily barm to another and involves a wrongful purpose. Counsel evidently fail to appreciate tbe distinction between tbe offense of assault, which involves a wrongful purpose, as suggested, and does not involve necessarily actually reaching the assaulted pei’son, and tbe term “assault” in its mere lexiconic sense, wbicb means tbe doing of violence by one to another, wbicb may or may not include tbe element essential to criminality. Tbe distinction is plainly noted in all law and general dictionaries. Tbe court unmistakably used tbe term in tbe latter sense, because tbe assault spoken of, as clearly indicated, consisted of tbe act of shooting George Walter, disassociated from all circumstances rendering tbe same unlawful. That is further clearly indicated by the fact that later in the charge the jury were carefully instructed on the subject of unlawful assault as something' distinct from the assault said to have been established beyond controversy. It is not within reasonable probability that the jury were at all misled by the language counsel criticises, although the manner adopted by the court in his instruction of presenting the case to the jury does not meet with our unqualified approval. The better way would have been to state that the first two essentials mentioned were established beyond reasonable controversy, to the extent that defendant was present on the occasion in question armed with a dangerous weapon, and that he, in fact, with such weapon shot George Walter.

Error is further assigned because the court instructed the Wi7:

“If you find defendant guilty as charged in the information under the instructions so far given you by the court, of course that is the end of your labors in this case, and you will return such a verdict.”

It is said that such instruction is erroneous because the court had not, up to the time it was given, informed the jury as to all questions essential to be passed upon unfavorably to the accused in order to justify a conviction; that he had not instructed the jury on the subject of justification for the act of shooting. True, it would have been a more logical treatment of the case to have given the instruction on that matter before using the language complained of, but proper instructions were afterwards given in respect thereto and such reference was made to the same before the use of such language that the jury were unmistakably told that such added instructions were to be deemed included in the term “under the instructions so far given to you,by the court.” Just prior to the use of those words the court said: “You should find him guilty as charged in the information, unless you find that such shooting was justifiable under the rules which will hereafter be given to yon by tlie court.” That plainly, in effect, placed tbe instruction on tbe subject of justification before tbe language excepted to.

Further error is assigned in tbe giving of tbis instruction:

“Tbe state claims tbat there is some evidence tending to prove tbat tbe defendant, in going upon tbe brewery premises and into the building where George Walter, tbe complaining witness, was, under tbe circumstances under which he did enter and with tbe knowledge of tbe unfriendly relations existing between himself and the two Walter boys, George and Martin, voluntarily went into said building where the complaining witness was, with tbe intent and for tbe purpose of provoking an affray or a difficulty with said George Walter, and there so conducted himself as to bring on the assault and • affray as it took place in tbe boiler room. Tbe court instructs you that if you believe and find from tbe evidence tbat tbe defendant did so, that is to say, that he voluntarily entered and went into said boiler room with tbe intent and for. tbe purpose of provoking an affray and difficulty with said George Walter, there so conducted himself as to bring on tbe assault and affray as it took place in tbe boiler room, tbat be, the defendant, is not entitled to the plea of self-defense. And tbe assault and battery which took place in tbe boiler room cannot excuse or justify tbe shooting which took place outside the boiler room.”

True, the prosecution claimed as stated and there was a basis in the evidence therefor. We cannot discover anything wrong in tbat. Doubtless tbe instruction is correct, tbat tbe mere occurrence of tbe affray in tbe boiler room did not justify tbe shooting of George after the accused was entirely free from him, as tbe evidence conclusively shows be was.

Lastly, complaint is made of tbe giving of tbis instruction:

“Tbe taking of human life is a matter of such terrible significance tbat it cannot .be justified by some slight appearance of danger. Nothing short of actual pressing necessity to tbe apprehension of the defendant will justify tbe taking of human life in self-defense, or an assault with the intent to take human life in self-defense. Tbe danger which will jus-tif y killing, or an assault with intent to kill, must be actual, pressing, urgent, to tbe apprehension of tbe defendant, and if tbe defendant, Holmes, was in fault in creating tbe situation of danger, bis right of self-defense did not arise until be bad done bis utmost to avoid tbe necessity of shooting tbe assailant.”

It is said that there was no evidence tending, in any view of it, to prove that Holmes' was at fault in creating tbe situation of danger which be claimed led to tbe shooting. Enough has been said to show that counsel is clearly in error on that point. Further, it is contended that tbe instruction is faulty because tbe words “cannot be justified on some slight appearance of danger. Nothing short of actual pressing necessity to tbe apprehension of tbe defendant will justify tbe taking of human life in self-defense,” were not qualified as required by tbe rule in Perkins v. State, 78 Wis. 551, 47 N. W. 827, to tbe effect that under tbe circumstances stated in tbe instructions one may kill bis assailant, if be believes and has reasonable ground to apprehend that he is in imminent danger of receiving some great personal injury at tbe band of such assailant. Doubtless, tbe instruction is faulty as contended. It is suggested that tbe form used by the learned court should not be adopted in' future cases in tbe same or in other jurisdictions. However, it seems that tbe error was harmless. Tbe jury were told that one may rightly take human life when be himself has not created tbe necessity therefor, if to bis apprehension there is a pressing necessity therefor. True, there must be such pressing necessity, and so far tbe charge was right, though what constitutes such necessity should have been explained to the jury, but it was not error to omit to do so, since no request in that regard was made on behalf of tbe plaintiff in error. True, also, tbe “pressing necessity” spoken of must be to tbe apprehension of tbe person assaulted, but be is not justified in killing bis assailant without there being still another element. There must be reasonable ground to believe that such necessity exists. As the learned court left the question, a person may be justified in killing another whether such person has any reasonable ground to believe-there is a pressing necessity therefor, so long as he in fact believes there is. No further analysis of the instruction complained of is necessary to demonstrate that while it was erroneous, the error was in favor of the accused, which, of course, does not furnish any legitimate basis for reversing the judgment. Fertig v. State, 100 Wis. 301, 310, 15 N. W. 960.

The foregoing covers all questions of any importance suggested for our consideration. The record is free from any harmful error whatever, and the judgment must be affirmed.

By the Court. — The judgment is affirmed.