Boyle v. State

Decision Date31 May 1883
Citation15 N.W. 827,57 Wis. 472
CourtWisconsin Supreme Court


Error to circuit court, Dodge county.

E. Elwell, for plaintiff in error, Thomas Boyle.

H. W. Chynoweth, Asst. Atty. Gen., for defendant in error, State of Wisconsin.


The plaintiff in error was tried in the circuit court upon an information charging him with the murder of his wife. The jury found him guilty of murder in the second degree, and the court sentenced him to imprisonment in the state prison for the term of 14 years. After verdict, and before sentence, the plaintiff in error made a motion to set aside the verdict and for a new trial, for errors occurring in the course of the trial, and because the verdict is not supported by the evidence. The death of the wife of the accused occurred either on Wednesday, the eleventh, or Thursday, the twelfth of January, 1882, at the house of the accused. The evidence shows that for several days previous to the twelfth of January the accused and his wife had been on a drunken debauch, and that on Wednesday, the eleventh of January, they had been to the village of Columbus, drinking quite freely, and when they went home in the afternoon took with them one gallon of whisky and half a gallon of wine. They went home in a double sleigh; were seen by several persons on the way. Most of the way home the deceased sat with the accused on the seat, but at one time she got down from the seat and was leaning over the dash-board with her breast against it, and the accused helped her up on the seat again. After they got home, on the evening of Wednesday, they were not seen by any one until the afternoon of Thursday, when the accused came out of his house with his overcoat on and called to a neighbor who was near by to come quick; that his wife was dead. He said to another witness that she died about 2 o'clock. The accused seemed stupified and could not talk plainly. When the deceased was first seen by the witnesses after her death, she was lying on the front side of the bed, on her right side, face towards the wall, head to the east on a pillow, all her clothes on, shawl and nubia, apparently the same she wore on her return from Columbus the day before. A post-mortem examination was made and the deceased buried. Thirteen days later her body was taken up and a second examination made. It is unnecessary here to give any particular statement of the result of such examinations. It is sufficient for the purposes of this case to state that all the experts engaged in the examination came to the conclusion that the immediate cause of the death of the deceased was suffocation, strangulation, or asphyxia. The theory of the prosecution was that the strangulation was produced by the accused by choking with his hand, pressing upon her neck, and, as supporting this theory, the medical witnesses who were present at the first examination testified that there were discolorations upon the neck which might have been made by the hand of a man clasping her neck. These discolorations had disappeared when the second examination was made. Some of the expert witnesses thought the death of the deceased might have resulted from causes other than the application of pressure upon her throat by the hand of the accused, or any other person; that death might well have ensued as the consequence of the drunken debauch, in which she had been indulging immediately previous thereto. As the case now appears to us, the most important question in the case for the jury to determine was whether the deceased's death was caused by violence applied by some other person, or whether her death was the result of her debauch. If it had been clearly shown that her death was the result of the force and violence of some person other than herself, there would be little doubt as to the person who must have applied such violence, as the evidence tended very strongly to show that no person had access to her after she entered her house on the evening of Wednesday until her death on Thursday, except the accused. Whether or not a homicide had in fact been committed, was the real difficult question in the case. If that fact was once satisfactorily established, there could be but litle room for doubt under the evidence as to the guilt of the accused.

From an examination of the expert testimony in the case, it is not made perfectly clear that the deceased came to her death by violence inflicted upon her by any one. The only marks and appearances upon her person which would indicate that fact with any degree of clearness, were the discolored spots in her neck, and the condition of some of the vital organs immediately after her death. The fact that the discolored spots on the neck of the deceased had entirely disappeared at the time of the second examination tended to show that the force which made them, if caused by force at all, was not very great or violentin its character, and shows the pertinency of the evidence offered by the prosecution tending to prove that death might be caused by strangulation without leaving any external marks of violence. It became, therefore, a question of the greatest importance in the case that the expert testimony which was offered on the part of the prosecution tending to show that the condition of the vital organs immediately after her death were such as would indicate death by strangulation, should be of an unexceptional character, as it is very clear that the slight discolorations on the neck of the deceased were not in themselves sufficient evidence of strangulation. It is claimed by the accused that they might have been caused by her leaning against the dash-board of the sleigh with her head over the same on her return home the day before her death. These discolorations, if accompanied by the other conditions of the vital organs and the general appearance of the dead body which are usually present after strangulation, would strengthen the conclusion that the death was caused in that way. It became necessary on the trial that the expert witnesses should be able to tell the jury what appearance the dead body would exhibit, externally and in the vital organs, when death was caused by strangulation, so that they could determine the question of fact whether the deceased came to her death in that way, by comparing the appearances found by the expert witnesses in their examination of the deceased with those which ordinarily follow death from such cause. The admission of any improper testimony bearing upon this vital issue in the case would necessarily prejudice the plaintiff in error, and compel a reversal of the judgment.

Upon the trial, Dr. Cody, a witness for the state, was permitted to answer a hypothetical question, including a statement of the appearances which the state claimed to have proved were found on the deceased, except the marks on the throat, calling for his opinion as to what was the cause of her death, and he answered, “I judge the deceased died from suffocation; asphyxia, sometimes called.” He was then asked that if, in addition to these appearances, marks were found on her throat, what his conclusion would be, and he answered, “That she died of strangulation.” The following question was then put to the witness: “Do you know, from books or otherwise, whether death is ever produced from strangulation without leaving marks upon the throat; that is, your own personal observation?” This question was objected to; objection overruled, and exception taken. He answered, “In Taylor's Jurisprudence such cases are recorded.” Question. “In standard medical works?” Answer. “Yes, sir.” Question. “Is Taylor's standard?” Answer. “Yes, sir.” The following questions and answers were permitted by the court: “Were you called to a person soon after death and found the face suffused with blood, dark purplish color; lips livid, dark; eyes prominent, colored; mouth open more or less; tongue bruised,--in such a case as that your judgment would be that death resulted from strangulation?” Objected to; objection overruled, and exception taken. “Yes, sir; with those appearances of the face: Both sides, both cavities of the heart, opened. Third, blood was found in one cavity; I think on the right side liquid blood, and the coagulation in the left.” “In cases of death by asphyxia or strangulation, how is the blood usually found in the heart,--in the condition found there or otherwise?” Answer. “That would be the usual condition. I remember that the books state that the blood should be coagulated on the right side, and not on the left. I do not know. I have not seen a case of strangulation. I do not know by experience.” “Do you know if the books, standard authority on the question, lay it down that in case where death has resulted from smothering or strangling a person by applying the hand over the mouth and nostrils that it has been produced without leaving external signs?” Objected to by defendant; objection overruled, and exception taken. “It is so stated by the books. Could not name the books in particular cases. They are standard medical books. I think, further, that there are some cases of little or no signs found after death, partly from the blood being fluid.” In connection with this evidence we quote what took place when the counsel for the state commenced summing up the case to the jury. The record reads as follows: “The counsel for the state, in opening the argument to the jury and in his argument, commenced to read to the jury from medical books, which it was claimed by the counsel had been proven to be standard medical authorities.” “The attorneys for the defendant then and there objected to reading from said books to the jury, because they were not offered in evidence, and, upon such objection made, the court said: He may read from medical books shown on the stand to be standard authority in the profession, within a reasonable limit;’ to which ruling and decision of the court the...

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