Boyle v. State

• Decision Date: 06 November 1884
• Citation: 21 N.W. 289,61 Wis. 440
• Parties: BOYLE v. STATE.
• Court: Wisconsin Supreme Court

61 Wis. 440

21 N.W. 289

BOYLE

v.STATE.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Error to circuit court, Columbia county.

E. Elwell, for plaintiff in error.

J. J. Dick, for defendant in error.

COLE, C. J.

On the second trial of this cause, as on the first, (see 57 Wis. 472;S. C. 15 N. W. REP. 827,) the real difficult question to determine was whether the death of defendant's wife was caused by violence applied by some person, or whether it was the result of her debauch. The clear and decided weight of the medical testimony tended to prove that the deceased died from strangulation, choking, or suffocation, which produced asphyxia; but what means were employed to produce asphyxia was left to inference. As observed by Mr. Justice TAYLOR, in his opinion in the 57th, the theory of the prosecution was that the defendant killed his wife by applying pressure or force upon the upper part of the chest, or upon the throat or mouth by his hand, or in some other way, so as to effectually exclude all air from her lungs. The post mortem examinations which were made disclosed marks or discolorations on the upper part of the breast-bone, and upon the neck, which might have been produced by the hand of a man pressing upon and clasping the throat, and thus choking and smothering her. On the trial previous acts of ill-treatment of the deceased by the defendant were shown, under objections as being improper testimony.

The admission of that testimony is the first error assigned for a reversal of the conviction. On this point the learned counsel for the defendant contends that any evidence of previous ill-treatment by the defendant of his wife, or of any assaults made upon her, was wholly improper, and calculated to prejudice the defendant in the minds of the jury. He says that particular acts of abuse of the wife by the defendant, which had no connection with the offense charged, could not be given in evidence against him for the purpose of raising a presumption of guilt. But the learned circuit court in its charge distinctly directed the jury that any evidence which tended to show ill-treatment of his wife by the defendant would be alone no proof of his guilt of the crime of which he was charged; that the evidence was simply received to show his feelings towards his wife, and as tending to show that his disposition carried him at times to the extent of committing personal violence upon her--acts of a character similar though different in kind and degree to those which it was charged caused her death. Now the question is, was not the evidence admissible for the purpose indicated in this charge, not to prove that the defendant was guilty of the crime charged against him, but to show the state of feeling between the husband and wife, and the want of affection on his part for her? It seems to us it was admissible for such a purpose if for no other.

In State v. Watkins, 9 Conn. 47, the public prosecutor, on the trial of an indictment for the murder of defendant's wife, in the absence of direct evidence of the alleged murder, offered, with other presumptive evidence, testimony to prove that for some months before and down to the time of the alleged murder an adulterous intercourse subsisted between the defendant and Mrs. B. It was held that such testimony was admissible. Chief Justice HOSMER, in the opinion, says: “It is a prominent fact in the case that the deceased was the wife of the prisoner. The presumption thence arising, that she was not killed by her husband, or that it was not of malice aforethought, was powerful. The relation of 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 to render her happy. As a man will consult his own preservation and pursue his own interest, so, as a general truth, he will equally regard the protection and interest of his wife.” Page 52.

It is important to bear in mind the object of the testimony in question and the facts intended to be established by it. And that was to show that the defendant did not entertain a proper regard and affection for his wife; that he had previously, and more than once, committed brutal assaults upon her, when, it is charitable to suppose, he was excited by ungovernable passion; that he had struck and kicked her, even when she was sick, without any apparent provocation. The evidence certainly tended to prove these facts, and it seems to us it was competent, because it showed how the defendant had treated his wife, and how insensible he was at times to her welfare. The jury surely would be warranted in concluding that the same disposition, the same bad feeling towards his wife on his part, continued up to the time of the alleged homicide. All this evidence, together with the other facts and circumstances from which an inference could be made as to the truth and probability of the main charge, were proper matters for the consideration of the jury. On this point we may cite the pertinent remarks of the supreme court of Iowa in a recent case: “It may be conceded, as the defendant claims, that upon a trial for a criminal offense evidence of independent acts of bad conduct is not ordinarily admissible, and in no case to establish the body of the crime. But upon a trial for murder, where there is evidence that would justify a jury in believing that the crime had been committed by some one, and there are circumstances which point to the defendant as the guilty person, evidence of conduct exhibiting a bad state of feeling on the part of the defendant towards the deceased is admissible.” State v. Cole, 17 N.W. REP. 183.

There are other authorities which sustain the admission of such testimony for the purpose of showing the state of feeling on the part of the defendant towards the deceased. People v. Bemis, 16 N. W. REP. 794;State v. Moelchen, 53 Iowa, 310;S. C. 5 N. W. REP. 186;People v. Williams, 3 Parker, Crim. R. 84; McCann v. People, Id. 272; State v. Green, 35 Conn. 203;Sayres v. Com. 88 Pa. St. 291. It is true, in these cases the question of motive or intent was material, and so it is here, for under the information the defendant might have been convicted of murder in the second degree if the proof had warranted it. “Considerable latitude is allowed on the question of...