21 N.W. 289 (Wis. 1884), Boyle v. State

Citation:21 N.W. 289, 61 Wis. 440
Opinion Judge:COLE, C. J.
Attorney:E. Elwell, for the plaintiff in error, For the defendant in error there was a brief by the Attorney General, and J. J. Dick, of counsel, and the cause was argued orally by Mr. Dick.
Case Date:November 06, 1884
Court:Supreme Court of Wisconsin

Page 289

21 N.W. 289 (Wis. 1884)

61 Wis. 440




Supreme Court of Wisconsin

November 6, 1884

Argued October 21, 1884.

ERROR to the Circuit Court for Columbia County.

The plaintiff in error was charged with the murder of his wife, and at the first trial was found guilty of murder in the second degree. The judgment was reversed and a new trial ordered. See 57 Wis. 472, where the circumstances attending the death of the wife are stated. The venue was then changed to Columbia county.

The evidence given on the second trial will sufficiently appear from the opinion. The following portion of the charge to the jury was excepted to by the defendant: "I now pass to the definition of manslaughter in the second degree. 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, is manslaughter in the second degree. If you do not find the defendant guilty of any higher grade of offense, then it is submitted to you upon this statement of the law, and the testimony, to determine whether you shall find him guilty of manslaughter in the second degree."

The following instruction asked by the defendant was refused: "8. In order to convict, the jury must find from the evidence that all the material facts and circumstances point to the guilt of the defendant, and that none of them are consistent with his innocence. In other words if any of the material facts are consistent with the innocence of the defendant he must be acquitted." The court stated that such instruction was "refused because some of the main facts relied upon, such as death and cause of death, might, standing alone, be entirely consistent with the innocence of defendant, or not even afford any presumption of guilt."

The jury found the defendant guilty of manslaughter in the second degree. A motion for a new trial on the grounds that the verdict was not warranted by the evidence, that it was contrary to the law and the evidence, and that the court erred in its charge to the jury, was denied. In denying the motion the court said:

"If I had not thought the evidence might warrant a conviction of manslaughter in the second degree, under section 4350, I most certainly should not have given the instruction I did upon the subject, citing the statute and commenting upon it. We all know it as a matter within the common observation of all mankind, that some persons when intoxicated fall suddenly, on a slight cause or provocation, and apparently sometimes without any cause or provocation, into a heat of passion.

"I judge from the testimony that intoxication has such effect on the defendant, and if he killed his wife by choking her to death, I think it was in a cruel and unusual manner, and certainly unless we conclude that he did it coldly and deliberately, we must conclude that it was done in the heat of passion. So that I think he was rightly convicted under section 4350, if he killed her.

"Upon the question whether he did kill his wife or not, my views are not so clear and certain that I ought to interfere with the verdict of the jury. I might say another jury and another judge have passed against the defendant on the same question, that of killing. It is proper for me to say this perhaps, although I do not base my judgment on the finding on the former trial in any manner, but on the finding in this case alone.

"Only two other questions are presented that I care to say anything about:

"Did the defendant kill his wife? The jury have found that he did; and as I have said my convictions are not such that I think I ought to interfere with the finding.

"Another question is presented: If he did, did he remember it when he came out of his drunken debauch; and does he remember it now? If a new trial depended upon that question, I certainly think a new trial ought to be granted. But it is entirely immaterial whether he is able to remember it now or not.


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