Bernhardt v. State

• Decision Date: 22 March 1892
• Citation: 82 Wis. 23,51 N.W. 1009
• Parties: BERNHARDT v. STATE.
• Court: Wisconsin Supreme Court

82 Wis. 23

51 N.W. 1009

BERNHARDT

v.STATE.

Supreme Court of Wisconsin.

March 22, 1892.

Error to circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

John Bernhardt was convicted of murder in the first degree, and brings error. Affirmed.V. W. Seely, for plaintiff in error.

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

ORTON, J.

The plaintiff in error was tried and convicted in the circuit court of the county of Waukesha of the crime of murder in the first degree for the killing of one Henry Schley on the 3d day of May, 1891. The facts are not material to any error assigned. The assignments of error will be disposed of in their order.

1. The information does not charge the crime of murder in the first degree. Murder in the first degree is “the killing of a human being when perpetrated from a premeditated design to effect the death of the person killed, or of any human being.” Section 4338, Rev. St. We are able to extract from the first part of the information “that John Bernhardt, with a club,” etc., “inflicted a mortal wound upon the body,” etc., “of one Henry Schley, with a premeditated design to effect the death of said Henry Schley, from which mortal wound he did die;” and from the last part of the information, “that John Bernhardt, from premeditated design to effect the death of Henry Schley, did the said Henry Schley feloniously slay, kill, and murder.” The crime is twice charged in the information in the language of the statute. These statements of the crime are not modified or qualified by the context of redundant matter with which the information abounds. No other crime or grade of murder is charged by any appropriate language. If the redundant matter and surplusage were stricken out, there would remain, at least, one good information for murder in the first degree.

2. The defendant's request to charge the jury on the subject of murder in the third degree should have been given, and that given by the court was error. The court instructed the jury as to the various degrees of homicide in the language of the statute, and that is sufficient. Rounds v. State, 57 Wis. 45, 14 N. W. Rep. 865.

3. The court refused to give the instruction asked by the defendant on the question what effect the drunkenness of the defendant should have upon the crime. The instruction given and that asked are substantially alike, the only difference being that the instruction given is more direct and specific than that asked. The instruction asked is: “If you have a reasonable doubt whether at the time of the killing the defendant had sufficient capacity to deliberately think upon and rationally to determine so to kill, you cannot find him guilty of murder in the first degree, although such inability was the result of intemperance.” The instruction given was: “If you shall find from the evidence in the case that this defendant, at the time he struck the blow, was in such a condition from the use of sprituous liquors that he was incapable of forming an intent to kill, then you may consider the question of intoxication. The question simply is, in short, was he at the time in such a condition mentally as to be incapable of forming this premeditated design to effect the death?” etc. This instruction is direct, clear, and to the point, and the jury could understand it. The point is, was he so intoxicated that he could not form the intent or the premeditated design to kill? The instruction asked is loose, indirect, and obscure, and it improperly uses the word “capacity” for “condition,” and the words “deliberately to think” and “rationally determine” for “intent. The instruction given was strictly correct. Terrill v. State, 74 Wis. 278, 42 N. W. Rep. 243;People v. Rogers, 18 N. Y. 9. The instruction given is more favorable to the defendant, as the word “capacity” might have been understood by the jury as indicating the permanent loss of ability to form an intent by a long course of intemperance, when the defendant should have the benefit of that condition produced...