Anderson v. State

• Decision Date: 13 December 1907
• Citation: 114 N.W. 112,133 Wis. 601
• Parties: ANDERSON v. STATE.
• Court: Wisconsin Supreme Court

133 Wis. 601

114 N.W. 112

ANDERSON

v.STATE.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Error to Circuit Court, Jackson County; James O'Neill, Judge.

Herman Oscar Anderson was convicted of murder in the second degree and brings error. Affirmed.

The plaintiff in error, hereinafter called the defendant, was charged with the deliberate murder of one Jepson at the village of Merrillan, Jackson county, August 9, 1904, and upon his trial was convicted of murder in the second degree, and brings his writ of error to reverse the judgment.

The evidence showed that the defendant, an unmarried man about 22 years of age, and one Davis, came to Merrillan from Elroy on Monday, August 7, 1904, in a box car without paying their fare. Merrillan is a village of some 700 or 800 population, and is the junction point of the Chicago, St. Paul, Minneapolis & Omaha and the Green Bay & Western Railways, and had, at the time in question, three saloons within its limits. Some 10 or 12 passenger trains a day passed through the village. The defendant, when he reached the village, had in his possession two revolvers, a number of razors, a quantity of spectacles, and some cheap jewelry, all of which he alleged had been given to him by his comrade, Davis. On Monday, August 8th, he went about town, attempting to sell some of these articles at the saloons and other places of business, and succeeded in selling some small things, and obtained thereby some money with which he purchased drinks at the various saloons. One Owen, a man of about 70 years of age, was marshal of the village, and had his attention directed to the defendant and Davis as suspicious characters early in the day, and as a result of his suspicions he kept track of their whereabouts during the day, and at several times had conversation with the defendant. At about 3 o'clock in the afternoon Owen, having been told that the defendant had some revolvers on his person, came into the saloon of one Bone, and found the defendant there, drinking beer, no one else being at that time present except the barkeeper, Jepson. There is testimony to the effect that prior to this time the defendant had been told to look out for the marshal, as he might nab him for peddling without a license, and the defendant said “he would like to see that white–haired son of a bitch take him,” but this threat was denied by the defendant. The tragedy occurred in Bone's saloon within a few moments after Owen entered it. Only two witnesses were sworn as to the immediate cause and the circumstances attending the beginning of the difficulties, to wit, Owen and the defendant. Owen testified substantially: That, as he went into the saloon, the defendant put something into his pocket which shone brightly, but he could not tell whether it was a revolver or a bottle. That he, Owen, walked around in front of the defendant, who kept turning away from him, and said: “What are you following me for?” That Owen replied: “I don't know. I have a right to go around, haven't I?” And the defendant said, “I suppose so.” That Jepson, the bartender, had stepped into a back room, and Owen went to the door of the room and asked Jepson what the defendant had in his pocket. That then Owen walked up to the defendant, and said; “Come, take a walk downtown with me. I want to talk to you.” That the defendant refused, and then Owen said, “I will have to put you under arrest,” and the defendant asked what for, to which Owen replied, “For carrying concealed weapons, and on suspicion.” That the defendant then stepped back, and Owen took hold of his arm, and the defendant pulled out a revolver and pointed at him, when Owen called: “Help, help!” That Jepson then came out of the back room, caught hold of the defendant very quickly, and the three had a squabble, Jepson seizing the defendant's right arm and Owen his left arm, and presently Owen heard the revolver go off, after which Jepson got the revolver out of the defendant's hand, and it dropped on the floor, and Jepson said: “I am shot. I see the blood;” and soon fell over. That the defendant then got away from Owen, ran out of the door and up the railway track, where he was soon caught by some railway men.

The defendant testified that while Jepson was gone in the back room Owen came in, walked up to him, and attempted to look in his coat pocket, and he asked what was wanted, and Owen said: “What have you in your pocket?” and defendant replied: “That concerns me,” and Owen said: “Come and take a walk downtown,” and defendant said: “What for?” Owen said: “There is a woman downtown wants to see you,” and defendant said: “If there is any woman wants to see me, I think I will go with you,” and asked who she was. Owen said: “It is your wife.” And defendant said: “I don't think I will go.” Owen then said, “Well, I will have to search you,” and defendant said, “Have you a warrant?” and Owen said he had not, and defendant said: “You can't search me without a warrant.” Owen said, “I can, and I will,” and he attempted to lay his hands on defendant who said: “Stand back, and let me alone,” but Owen kept coming towards him, whereupon the defendant drew the revolver, supposing it was unloaded and pointed it at the marshal just to frighten him; that Owen did not tell defendant that he put him under arrest or say anything of that kind, and told him that he wanted to search him; but, after he drew the revolver, Owen turned pale and began to shake, and the defendant became frightened at Owen's condition, and dropped his hand with the revolver to his side, and while he stood there staring at Owen with his arm at his side Jepson caught him by the neck and right wrist from behind and Owen caught hold of his other arm, and he told them to let him alone, he would give up, but that Jepson got around in front of him, and got hold of the revolver and attempted to take it from him; that he had had but little experience with firearms; that he did not intend to shoot either Jepson or Owen, and that, if he pulled the trigger, he did not do so intentionally; that he could not say how the revolver was discharged, but that it was by reason of Jepson's attempt to take it from him; that he did not know whether at the time of the discharge his finger was or was not on the trigger; that he did not discharge it voluntarily; that he was not in passion or in anger, but he was excited; that he broke away from Owen and ran out because he was terrified; that, if his finger pulled the trigger, it was through some act of Jepson in pulling the defendant away or in pushing his finger. Shortly after the struggle began, one Sample came into the saloon through the rear door, and saw the latter part of the struggle, but took no part in it. He testified, in effect, that he saw the revolver in the defendant's right hand during the scuffle; that most of the time it was pointed in the general direction of Jepson, and that, when the shot was fired, it was about 15 inches from Jepson's breast. After the defendant escaped from Owen and ran up the railroad tracks, he was followed and captured by one Fowler, a freight conductor, and a number of other railway men. Jepson died within a few moments after the shot was fired, without having made any statement. Upon the same evening an inquest was held before a justice of the peace, and the defendant was taken to the inquest by the sheriff and testified. Some of this testimony so given was introduced upon the trial of the present case as tending to contradict some of his evidence given upon the trial. Under the charge of the court the jury was permitted to find the defendant guilty of murder in the first or second degree or of manslaughter in the first, third, or fourth degree, and was also permitted to acquit the defendant on the ground of justifiable or excusable homicide. Fifteen instructions requested by the defendant were given by the court, and 29 instructions so requested were refused and due exception taken.Geo. M. Popham and Charles F. Hille, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and Frank T. Tucker, Second Asst. Atty. Gen., for the State.

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

The defendant assigns 29 errors and discusses them in his brief under 37 different heads. Many of these alleged errors are variations of the same proposition. Others are so closely related that they may be discussed as a class, while still others are not considered of importance enough to warrant individual treatment. All, however, have been carefully examined, and it is not to be assumed that those which are not specifically discussed have failed to receive due consideration.

1. After the defendant had escaped from Owen at the saloon, he ran up the railroad track pursued by Fowler and other railroad men for about 80 rods, until he was captured. While pursuing the defendant, Fowler shouted to him to throw up his hands, conveying the impression that he (Fowler) had a weapon, whereas he really had none. When the defendant stopped, he threw up his hands and Fowler seized him roughly by the collar, and defendant seemed scared and said: “Don't hurt me.” Fowler then said: “G_____ d______ you, don't you know that you killed a bartender down here?” At this point Fowler was asked what the defendant said in reply, and objection was made to the question because it appeared that the defendant was then in fear, and that his statement, if he made any, was not voluntary, but extorted by violence. The objection was overruled, the court remarking that this was all a part of the res gestæ, and the witness answered that defendant said he was sorry he did it. This ruling is alleged as error, but we have been unable to so regard it. Whether the trial judge was right in holding the statement to be a part of the res gestæ is not necessary to be decided. Any statement voluntarily made by the defendant with reference to his part in the transaction was admissible in evidence against him. A statement is...