Klieforth v. State

59 N.W. 507, 88 Wis. 163, 1894 Wisc. LEXIS 26

• Court: Wisconsin Supreme Court
• Decided: May 25, 1894
• Status: Published

Opinion

WiNsnow, J.

The pivotal question in the case was whether the duck was shot in the night time or in the day time; and the court charged the jury that if it was- shot before 4: 21 A. M., then it was shot in the night, and if after that time, then it was shot in the day time. This instruction fixed the end of night and the commencement of day at a definite minute of time,— just one hour before sunrise. We have been referred to no authority which sustains this definition of “ night,” and we think that it must be held erroneous. In the case of burglary, the rule is thus stated by Blackstone (vol. 4, p. 224): “ If there be daylight or crepusculum enough, begun or left, to discern a man’s face withal, it is not burglary. But this does not extend to moonlight.” This rule was approved by this court in Nicholls v. State, 68 Wis. 416. It is substantially supported by the general current of decisions in those states where, as in Wisconsin, there is no statutory definition; 16 Am. & Eng. Ency. of Law, 707, and cases cited in note 3. We see no good reason for applying one definition to the w;ord in burglary, and another definition in a prosecution for violation of the game laws. It is plain that in view of the evidence the erroneous definition given by the court might have been, and probably was, very prejudicial to the defendants’ case.

By the Gov/rt.— Judgment reversed, and cause remanded for a new trial.