Butler v. State

• Decision Date: 14 March 1899
• Citation: 102 Wis. 364,78 N.W. 590
• Parties: BUTLER v. STATE.
• Court: Wisconsin Supreme Court

102 Wis. 364

78 N.W. 590

BUTLER

v.STATE.

Supreme Court of Wisconsin.

March 14, 1899.

Error to circuit court, Waukesha county; James J. Dick, Judge.

James Butler was convicted of murder, and brings error. Affirmed.D. J. Hemlock, for plaintiff in error.

R. F. Hamilton, for defendant in error.

DODGE, J.

The plaintiff in error, on December 20, 1897, was convicted of murder in the first degree for the killing of his wife on the 5th of July in that year. There was no dispute as to the fact that he slew her with two or more blows of an ax. He was tried upon a preliminary issue of insanity, and, being found sane, was then tried upon the issue of his guilt, and from judgment and sentence upon conviction brings this writ of error.

Twenty-two assignments of error are presented in plaintiff's brief, more than half of which are not argued, either orally or in the brief; and we shall assume from that fact that they are abandoned, and shall not consider them. This court ordinarily will not assume the labor of searching for grounds to support assignments of error which counsel deem unworthy of argument, though we should not, for that reason, ignore an assignment which presented a palpable and obvious error prejudicial to justice.

1. It is claimed that the complaint before the justice, upon which the preliminary examination was had, was insufficient. It alleges, in the language of the statute, that the plaintiff in error “did willfully, feloniously, and with malice aforethought, kill and murder one Mary Butler.” This is sufficient in a complaint before a justice, where only a substantial statement of some offense is necessary to give the justice jurisdiction. Rev. St. § 4776; State v. Evans, 88 Wis. 260, 60 N. W. 433;Annis v. People, 13 Mich. 511. Indeed, in Allen v. State, 85 Wis. 22, 54 N. W. 999, such allegation was held sufficient, in an information, to support a verdict of murder in either the first, second, or third degree.

2. The fifth assignment protests against the present jury law, providing for selection of names by jury commissioners. No ground is pointed out except that it curtails the right of supervisors of the different towns to furnish a jury list. That right, when it existed, was purely statutory, and could, of course, be withdrawn, in the discretion of the legislature.

3. The sixth assignment complains that, upon the trial of the issue of insanity, a physician was allowed to testify that the cuts upon the body of the victim appeared to be made by a sharp instrument, and that death occurred from a fracture of the skull, and hemorrhage. These facts were so wholly undisputed throughout the case that the testimony could not have been prejudicial to the defendant at any stage of the case.

4. Under the sixteenth assignment plaintiff in error assails that portion of the court's charge on the question of sanity in which the jury were instructed that insanity means “such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or not conscious, at the time, of the nature of the act which he is committing.” Apparently the only criticism made by plaintiff in error is that insanity, to constitute a defense, may also consist in the loss or subordination of the will, so that, although the moral character of the act may be understood, the conduct of the accused is beyond his control. There are many respectable authorities to support even that portion of the charge of which plaintiff in error complains, if it stood alone. 4 Am. & Eng. Enc. Law, 715; State v. Erb, 74 Mo. 199. But it is unnecessary to pass on that question, for the court's charge did include both classes of insanity, and did fully instruct the jury that the loss by disease of either the cognitive or the conative power was sufficient to constitute a defense. The words above quoted were immediately followed by: “Or, where, though conscious of it, and able to distinguish between right and wrong, and knowing that the act is wrong, yet his will--by which is meant the governing power of his mind--has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.” The charge as given, therefore, seems to be a correct statement of the rule of law most favorable to defendant, and in full accord with that applied in Guiteau's Case, 10 Fed. 161, by Judge Cox, whose charge in that famous case deservedly occupies a high place in judicial literature for thoroughness of investigation and accuracy of expression.

5. The fifteenth, twentieth, twenty-first, and twenty-second assignments of error present certain criticisms upon the court's charge as to reasonable doubt. That charge was given twice,--first upon the submission of the question of insanity, and again upon the submission of the question of guilt to the jury. The portion excepted to was as follows: “A reasonable doubt is that state of the case which, after an entire comparison and consideration of all the evidence in the case, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction, to a moral certainty, of the truth of the matter. But it is not necessary that you should be satisfied beyond all possibility or suspicion of a doubt of the truth of the matter. Doubts that are not based upon a careful and reasonable consideration of all the testimony, facts, and circumstances proved upon the trial, and are purely imaginary, or born of sympathy alone, or of ingenious suggestion of counsel, not based on the evidence in the case, should not influence your verdict. Possible or sympathetic doubts have no proper place in your deliberations. A reasonable doubt is a doubt founded upon a consideration of all the testimony, facts, and circumstances proved on the trial, and based on reason; a doubt for which a reason can be given, based on the evidence in the case; and such a doubt as would govern and control a reasonably prudent man, and deter him from acting or deciding in his own most important affairs and concerns of life. But you should give the facts proven in the case the most reasonable, charitable, and merciful construction consistent with all the evidence in the case. And if there is one single material fact in the case proved to your satisfaction, by a preponderance of the evidence in the case, or the greater weight of the evidence, which is inconsistent with the guilt of the defendant, as to any of the degrees of crime submitted to you for your determination in this case, this is sufficient to raise a reasonable doubt as to the guilt of the defendant, as to the degree of crime to which such material fact is connecting him and part of,--in such case the jury should acquit the defendant as to such degree of crime where any such...