Allen v. State

Citation85 Wis. 22,54 N.W. 999
PartiesALLEN v. STATE.
Decision Date11 April 1893
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to circuit court, Clark county; A. W. Newman, Judge.

Daniel Allen was convicted of murder, and, motions in arrest of judgment and for a new trial being overruled, he brings error. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

The plaintiff in error was tried for murder upon an information charging that he “did feloniously and of his malice aforethought kill and murder Henry Wright, against the peace,” etc. The jury returned a verdict finding him “guilty as charged in the information,” whereupon they were discharged. On the next morning the jury were reassembled, and asked in what degree they found the defendant guilty, and each replied “In the first degree;” whereupon the court directed, against objection and exception, that the words “of murder in the first degree” be inserted after the word “guilty” in the verdict. Motions in arrest of judgment and for new trial were overruled, and exceptions taken, and plaintiff in error was sentenced to imprisonment for life, from which judgment and sentence this writ of error is prosecuted.R. J. MacBride, J. M. Morrow, and M. C. Ring, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for the State.

WINSLOW, J., (after stating the facts).

An information charging that the defendant “did willfully, feloniously, and of his malice aforethought kill and murder the deceased,” is sufficient, under section 4660, Rev. St., and under it the defendant may properly be convicted of murder in either the first, second, or third degree. But a general verdict of guilty upon such an information does not authorize the court to pronounce judgment, because the degree of the crime is not determined. These propositions must be considered as settled in this court. Hogan v. State, 30 Wis. 428;State v. Sloan, 65 Wis. 647, 27 N. W. Rep. 616. Such being the law, it is evident that the plaintiff in error could not have been legally sentenced under the verdict as it stood when first rendered by the jury, and when they were discharged. The question, then, is, could such defective verdict be afterwards corrected, either by the court itself or by reassembling the jury, and ascertaining from them what degree of murder they intended to find? We have been referred to no authority which answers this question affirmatively with reference to a criminal, much less a capital,...

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22 cases
  • State Et Rel. Johnson v. Thomson
    • United States
    • United States State Supreme Court of North Dakota
    • September 29, 1948
    ...99 N.W. 909, at page 934. The words ‘does not authorize’ were used in this latter sense by the Supreme Court of Wisconsin in Allen v. State, 85 Wis. 22, 54 N.W. 999. In that case the defendant was charged with murder, and under the charge made in the information he might have been found gui......
  • State v. Sorrentino
    • United States
    • United States State Supreme Court of Wyoming
    • February 15, 1927
    ......19;. Fletcher v. State, (Miss.) 92 So. 556; Wood v. State, (Okla.) 112 P. 11. An appellate court could not. change the verdict; State v. Child; (Kan.) 22 P. 721;. Henwood v. People, (Colo.) 129 P. 1010; In re. Burns, 113 F. 987; Ex Parte Slinger, 284 F. 60;. In re Bonner, 151 U.S. 242; Allen v. State,. (Wis.) 54 N.W. 999; Slocum v. Ins. Co., 228. U.S. 364, and cases cited. An appellate court has no. jurisdiction to reduce the amount of a verdict found by a. jury, on the ground that the verdict is against the weight of. the evidence; the cause must be remanded for new trial;. ......
  • Ex parte Carlson
    • United States
    • United States State Supreme Court of Wisconsin
    • February 7, 1922
    ...45 Fla. 128, 34 South. 279;Lindsey v. State, 69 Ohio St. 215, 69 N. E. 126;State v. Tommy, 19 Wash. 270, 53 Pac. 157. In Allen v. State, 85 Wis. 22, 54 N. W. 999, the word “willfully” appears to have been omitted from the information in the case. The court says: “This is one of the few tech......
  • Koch v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • January 9, 1906
    ...was not sufficient to support the conviction. McEntee v. State, 24 Wis. 43;La Tour v. State, 93 Wis. 603, 67 N. W. 1138;Allen v. State, 85 Wis. 22, 54 N. W. 999. The question, therefore, arises whether the verdict could have been amended upon the facts heretofore stated. It is contended on ......
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