Montgomery v. State

107 N.W. 14, 128 Wis. 183, 1906 Wisc. LEXIS 217

Opinion

Wmsnow, J.

The questions raised which we deem it necessary to decide will be considered in their natural order.

1. Upon the motion for change of venue there were filed a large number of affidavits tending to show that there was much popular excitement in a considerable part of Monroe county immediately following the death of Mrs. Montgomery, and much adverse feeling against the defendant; on the other hand, there was a much larger number of affidavits from many men of standing in various parts of the county to the effect that there was no popular prejudice against the defendant, and that he could receive a fair trial. The question was one of fact for the trial court, and we cannot say from the record that it was wrongly decided.

, 2. The defendant filed a special plea in bar on the ground of former jeopardy. By this plea it appeared that the defendant was arrested on June 1, 1903, upon a complaint and warrant charging assault, and taken before a justice of the peace, where he pleaded not guilty, and the case was adjourned; that he appeared on the adjourned day and demanded trial, whereupon the district attorney nolled the case and the action was dismissed and the defendant discharged. A demurrer to this plea was sustained, and we think rightly. Conceding that a prosecution and acquittal of assault would bar a prosecution for murder (which is not decided), the accused must actually be put on trial — that is, the trial must have commenced — before he can be said-to have been in jeopardy. Such was not the case here. McDonald v. State, 79 Wis. 651, 48 N. W. 863.

3. After the plea in bar had been overruled, a plea in abatement on the ground that the defendant had not had a legal preliminary examination was'filed, and a demurrer to the plea was sustained. The plea showed, in brief, that the defendant was arrested on the 10th of June, 1903, upon a complaint and warrant charging murder in the first degree; that he pleaded “not guilty,” and an adjournment was taken; that on the adjourned day an examination was held and an inquest taken, and the justice found that there was probable cause to believe the defendant guilty of murder, and ordered the proceedings to be stopped and the defendant sent to jail to appear before the circuit court to answer thereto, and issued a commitment under which the defendant was committed to the common jail of Monroe county. This was entirely sufficient, under the decisions of this court in State v. Leicham, 41 Wis. 565, and Campbell v. State, 111 Wis. 152, 86 N. W. 855.

4. The defendant requested the giving of the following instruction, which was refused:

“I charge you, gentlemen, that it is a prominent fact in this case that the deceased is the wife of the defendant. The presumption that has arisen that she was not killed by her husband or that it was not malice aforethought is powerful. The-relation of the husband and wife clearly implies a strong, partiality on the part of the husband towards his wife and the most ardent desire to protect her and render her happy. As a man will conserve his own preservation and pursue his own interests, so, as a general truth, he will equally regard the protection and interest of his wife.”

This was properly refused. While the sentences requested were quoted approvingly by this court from a Connecticut case, in Boyle v. State, 61 Wis. 440, 21 N. W. 289, they were simply used as an argument upon the question of admission of certain evidence, not as an appropriate charge to a jury. It would clearly not have been proper under the testimony in the present case to have given the jury any such broad and sweeping generalizations as to the presumptions resulting from the marital relation.

5. The defendant’s counsel made the following request for an instruction to the jury:

“The defendant requests that the court instruct the jury upon the law and definition of manslaughter in the second degree, as stated in sec. 4350 of the Statutes of the State of Wisconsin, and instruct the jury that if they find from the evidence that manslaughter in the second degree is proven they can find the defendant guilty of such charge.”

A similar charge was.requested as to the fourth degree of manslaughter, under sec. 4362, Stats. 1898. Both of these requests were refused, and exceptions were duly taken, and these rulings are now assigned as error. The effect of the general charge of the court was that the defendant must either be convicted of murder in the first degree or acquitted. The instructions requested were inartificially drawn and cannot be commended. A requested instruction should be so drawn that it can be given in the words of the request without change. Stats. 1898, sec. 2853. In prosecutions for serious crimes, however, this court has held that requested instruc 'tions which express a correct principle should, not be refused on account of a mere verbal inaccuracy, but that the trial court should correct the inaccuracy and give the instruction. State v. Wilner, 40 Wis. 304; Conners v. State, 47 Wis. 523, 2 N. W. 1143. In substance, the defendant requested the court in 'writing to read to the jury the sections of the statute named, and instruct them that if the facts warranted they could find the defendant guilty of either of such offenses. So we think we must meet the question whether there was evi--denee in the case which would require the court, if requested, to submit the question of manslaughter in the second degree, -or manslaughter in the fourth degree, or both, to the jury.

Manslaughter in the second degree is thus defined by sec. 4350:

“The killing of a human being, without design to effect -death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.”

Manslaughter in the fourth degree is thus defined by sec. 4362:.

“The involuntary killing of another by any weapon or by •■any means, neither cruel nor unusual, in the heat of passion, in any cases other than such as are herein declared to be justi■fiable or excusable homicides, shall be deemed manslaughter in the fourth degree.”

' It will be noticed that in both of these offenses the killing ■must be done in the heat of passion, and we are first met by the proposition on the part of the state that, because the defendant testified positively that he was not angry at any time during the ride home, he is concluded upon the subject, and was not entitled to ask for an instruction that he might be found guilty of any crime involving as a necessary element -the heat of passion. On this point reliance is placed upon the decision in the case of Perugi v. State, 104 Wis. 230, 235, 80 N. W. 593, and it must be said, in justice to the trial court, that the ruling is fully sustained by the decision upon the exact point which was made in that case. It was suggested also that a like ruling was sustained in Fertig v. State, 100 Wis. 301, 75 N. W. 960, but reference to that case shows, that, in passing upon the propriety of a proposed instruction involving self-defense, the fact that defendant had testified and maintained that his act was accidental was mentioned, but was simply relied on as a part of the proof which, in connection with other evidence, demonstrated that there was no ground on which a finding of self-defense could be based. However, the ruling was unmistakable in the Perugi Case, although no authorities were cited in its support nor have we been able to find any. Upon mature consideration we are satisfied that the ruling cannot be justified. It is w'ell established that while a party in either a civil or criminal case may not directly impeach his own witness, he may show that his testimony is not correct by other witnesses, who testify to a different state of facts. Richards v. State, 82 Wis. 172, 51 N. W. 652; Collins v. Hoehle, 99 Wis. 639, 75 N. W. 416. It has also been held in Massachusetts that there is no sound reason why this rule should not, if the circumstances are com sistent with- honesty and good faith, be applied when the party himself is the witness, nor why, under the same circumstances, he may not rely on the testimony of the witnesses of the adverse party to prove material facts denied by his own testimony. Hill v. West End St. R. Co. 158 Mass. 458, 33 N. E. 582. Thus, in the present case, suppose there had been a third person in the buggy, who testified to facts showing that the defendant was in anger, and in the course of a struggle with his wife she fell or was thrown from the buggy and received her injuries, could not the defendant have relied on this testimony and insisted upon its submission to the jury, whether the witness were called by himself or by the state, and notwithstanding the fact that he had testified that he -was not angry % His testimony that he was not angry is not nec essarily dishonest, although it may not be true. He had testified to facts well calculated to excite passion on his part, and we all know how prone people are to honestly misjudge their own feelings, to affirm in good faith that they aré not excited or angry, when it is apparent- to others that they are. There was direct testimony on the part of the state showing a high state of anger on the part of the defendant upon this remarkable ride; if the jury had found the defendant guilty of a. degree of homicide necessarily involving heat of passion, could the defendant have demanded and obtained a new trial because he himself had denied anger? These considerations seem to ns conclusive to the effect that the ruling in the Per-ugi Case was wrong and must be overruled, and that, as a result thereof, the defendant was entitled in the present case to have the question of his guilt of either the second or fourth degree of manslaughter submitted to the jury.

6. We reach now the contention that the evidence adduced did not justify a verdict of premeditated murder. We have given this subjeét careful and earnest consideration. The circumstances under which this woman met her death were of a most remarkable character. She and her husband left Warrens for home near the close of an apparently happy day, in reasonably good health and spirits. There was no indication of any impending disaster or threatened violence. They were in an open buggy, in broad daylight, driving over a familiar road, lined with the homes of friends and neighbors who knew them well, returning home after a separation of weeks or months. Before they had gone two miles the wife had been out of the buggy, her hair was disheveled and streaming down her back, her face covered with blood. From this point the defendant whipped his horses and drove at great speed for most of the way, and the woman was apparently leaning against her husband. She was out of the buggy again when near the end of the j ourney, and when she reached the end she was either dead or dying from dislocation of the first and second vertebrae of the neck, her face and head terribly brnised and cut, and her body bearing the marks of her terrible experiences. The defendant telephoned at once for a doctor, over a line which ran through the houses of all his neighbors, and also called some of the neighbors by telephone. The injury was one which produces instant paralysis or death, or both, almost invariably. It generally results from a fall on the head, but may be produced by a sufficient blow upon the neck. There was no testimony of any threat, save the somewhat remarkable testimony of the Bardens to the effect that the defendant, at about three miles from Warrens, struck her on' the side or shoulder and said, “Sit up, God damn you, or I’ll kill you.” It cannot be supposed for a moment that these blows resulted in the fracture of the vertebrae, for the position in which the parties were sitting — i. e. side by side in the buggy — renders it hardly possible that a blow upon the neck sufficient for such a result could be delivered. If the defendant killed his wife by design he certainly chose a most unlikely means, a most unlikely-time and place, and followed his act with most remarkable conduct. He was not an educated man. lie could not have known that a blow on the neck would be likely to cause such results, nor that a fall from the buggy would be likely to produce them. Not knowing that such results would be probable, is it reasonable to conclude that he adopted either of these means from premeditated design to murder? Can it be reasonably supposed that a man who intended to murder his wife would throw her from the buggy on the chance that she might fall on her head and break her neck, and then gather her into the buggy and run his horses home in view of all his neighbors, and call in a doctor and his neighbors to view his work ? We confess that we have been much troubled in attempting to solve these questions, but we have been forced to the conclusion that, culpable as the conduct of the defendant toward his wife may have been, the evidence adduced does not justify tbe jury in finding, beyond a reasonable doubt, that murder was in Ms heart. In our judgment, justice has miscarried here, and there must be a new trial upon this ground as well .as for the errors before noted.

By the Court. — Judgment reversed, and action remanded for a new trial. The warden of the state prison is directed to deliver the plaintiff in error into the custody of the sheriff of Monroe county, to be by him held to abide the further order and judgment of the court. ■as individuals may, and some do, refrain from disturbing their neighbors’ comfort up to the full limit permitted by law. If the words of the act in question, reasonably considered, do fairly promise a broader immunity than could have been secured had the constitutional privilege of silence been exercised, why should they not be given effect. No court can presume that the legislature acted in bad faith or with intent to mislead or deceive. Great Falls Mfg. Co. v. Att’y Gen. 124 U. S. 581, 599, 8 Sup. Ct. 631. Hence any promise such as this is to be at least fairly construed in favor of one who in consideration thereof is deprived of a valuable right. Is there anything in the history of this legislation so' clearly limiting the legislative intent that it should control the words used to express it ?

Oassoday, O. J., took no part.