Cornell v. State

• Decision Date: 07 November 1899
• Citation: 104 Wis. 527,80 N.W. 745
• Parties: CORNELL v. STATE.
• Court: Wisconsin Supreme Court

104 Wis. 527

80 N.W. 745

CORNELL

v.STATE.

Supreme Court of Wisconsin.

Nov. 7, 1899.

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

Ernest Cornell was convicted of murder in the first degree, and brings error. Affirmed.

On November 19, 1897, the defendant resided with his wife and two children of their own, and two of her children by former marriage, in indigent and destitute circumstances, at Oconomowoc. On that evening the defendant went to bed in one room with his two children, aged, respectively, 6 and 4. Later the wife, together with a boarder, between whom and herself illicit relations, with the knowledge and consent of the defendant, are claimed to have existed, went to bed in another room. In the morning the defendant was found in bed with his throat cut, almost but not quite fatally, and the two children dead in bed, each with a blow upon the head from a hammer, fracturing their skulls, and each with throat cut fatally. His wife immediately called the boarder, who notified certain neighbors, who came with a physician. Defendant was conscious on their arrival, and, in answer to inquiries, stated, substantially, that he did not know whether he killed the children or not; that, if he did, he did not know it. Defendant's bed and bedroom were smeared with blood, as also his clothes and parts of his person, including the soles of his feet. A bloody razor was found upon the commode near the head of the bed, and a bloody hammer on the floor near the bed. Rigor mortis was complete in the bodies of both the children. The wife and boarder were arrested, and the defendant treated by the physician, and a nurse provided for him. There were no signs of blood elsewhere in the house, or on the persons or clothing of the wife or the boarder. After a few days the defendant modified his statement by saying that, after reading the newspaper accounts of how things were found in the house, it seemed as if he must have killed the children; and 10 days later, of his own volition, he requested his nurse to procure the attendance of the district attorney, saying that he wanted to tell the whole story, and thereupon did relate to the nurse his statement (which was afterwards repeated to many other persons without substantial variation), to the effect that on retiring that night he had determined to end his life, owing to his indigent condition and the illicit relations between his wife and the boarder; that he waited only until he heard them retire to the other bedroom, and then proceeded to get his razor, to carry his design into effect; that, his glance falling upon the children, the thought came to him that he ought not to leave them to grow up under such circumstances, and that it was better to take them with him; that he remembered having struck his foot against a hammer as he was going to bed, and determined to use that to stun the children before cutting their throats, in order that they should not suffer; that accordingly he secured the hammer, and carried out that design, first striking them each on the head, and then cutting their throats (giving details as to shifting the body of one of them so that the blood should not continue to spurt upon the wall); that then, kneeling upon the bed, he drew the razor across his own throat, and fell off the bed, which was the last memory he had until towards morning, when he became conscious, and struggled back onto the bed, and lay down again, where he was found. He detailed having dropped the razor, finding it in the morning; first putting it under his pillow, and afterwards laying it on the commode, where it was found. He gave as a reason for desiring to make this statement that his previous statements had not, as he expected, been sufficient to relieve his wife from the charge, and that he did not want others to suffer for his act. Substantially this statement was repeated to the district attorney, Mr. Parkinson, to the deputy sheriff, and to others. The proof discloses that it was made before he was arrested, without any solicitation, threats, or suggestion of advantage from any of them, and entirely voluntarily. Being arrested and brought to trial, he interposed a plea of insanity, which issue being found against him, the trial proceeded to a verdict of guilty of murder in the first degree, followed by sentence to imprisonment for life, to review which judgment writ of error was sued out from this court. Upon the trial of the issue of insanity much evidence was offered, which, however, went little further than to disclose a somewhat weak–minded man, without malice or ill temper, addicted to drinking at various intervals in his life, and through many years addicted to self–abuse, but with the ordinary powers of understanding and reasoning as to his acts, and of guiding his conduct by his will. A situation approaching pauperism was shown, and declarations to the effect that he had surrendered his wife to illicit intercourse with the boarder as a means of sustaining his family, somewhat against her will. Other material facts are stated in the opinion.

John A. Kelly, for plaintiff in error.

R. F. Hamilton, Asst. Atty. Gen., for the State.

DODGE, J. (after stating the facts).

1. Several errors are assigned upon the selection of the jury, which are classifiable into: (a) That the court, after 270 jurors had been drawn from the list supplied by the jury commissioners, ordered the sheriff to summon 30 from the county at large for the purposes of this case; (b) that the court denied defendant's challenge to several jurors who said upon their voir dire that they had formed an opinion that a murder had been committed, but not as to the responsibility of any one for it; (c) that the court overruled defendant's challenge to jurors who had been summoned upon special venire for an individual case within a year; (d) that the court sustained the state's challenge for cause to a juror who said that he had a preconceived opinion that any person committing suicide must be insane. After the jury was complete, and before it was sworn, the court inquired of each of the counsel whether he was satisfied with the jury, and received from each an unconditional, affirmative answer. It is apparent, therefore, that under the rule last laid down in Emery v. State, 101 Wis. 627, 78 N. W. 145, the defendant is not in position to assign error upon any of these grounds. His unconditional acceptance of the jury waived all such grounds of objection, even if otherwise tenable. Flynn v. State, 97 Wis. 44, 72 N. W. 373.

2. The information, without description or enlargement, merely charged the defendant with the willful and premeditated murder of both William Cornell and Lillie Cornell. Before any witnesses were called, even on the issue of insanity, the defendant moved the court to require the prosecution to elect between the two, which motion was overruled. After the verdict, defendant moved in arrest of judgment upon the ground of duplicity in the information, which motion was also overruled. Duplicity consists in alleging two independent crimes in the same count of an information or indictment; and if those crimes be distinct, to the extent, at least, that different defenses may be interposed as to each, or different evidence may be necessary as to them, the accused has a right to object, and insist on their severance. This he may do, if the duplicity is apparent on the face of the information, by a demurrer, by motion to quash, or by a motion that the prosecution be required to confine itself to one or the other offense. Bish. Cr. Proc. § 442; Fulmer v. Com., 97 Pa. St. 503; Forrest v. State, 13 Lea, 103. If he do not so object, he will be deemed to have waived the irregularity, as he has a right to do; for its effect may be not to prejudice him, but even to aid him in his defense. For this reason duplicity in the information is not a ground for a motion in arrest of judgment,––certainly unless the crimes be of distinct grades, so as to affect the character of the sentence which may be imposed therefor. Bish. Cr. Proc. § 443; Com. v. Tuck, 20 Pick. 356; Forrest v. State, supra. If, however, the duplicity is not apparent upon the face of the information, obviously it cannot be reached either by a motion to quash, a demurrer, or a motion to require an election, made before the taking of any evidence. In that case it would seem that the defendant's right might be protected, whenever the duplicity was first made to appear to the court, by then moving to require an election as to which crime should be prosecuted. Forrest v. State, supra. In the case at bar no duplicity is apparent upon the face of the information. So far as appears from that alone, the children might both have been killed by a single act, as by a single shot from a gun, or by a single blow. Rucker v. State, 7 Tex. App. 549. The court therefore could not, at the time the motion was made, recognize any defect or duplicity, and properly overruled defendant's motion, which was not renewed after the circumstances of the killing appeared. This assignment of error is also untenable on another ground. Sanb. & B. Ann. St. § 2829, commands that this and all other courts shall, “in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” This statute is equally applicable to criminal as to civil actions. Odette v. State, 90 Wis. 258, 262, 62 N. W. 1054. It is apparent from the statement of the case, and the proofs upon which the verdict was founded, that no particle of evidence was rendered either necessary or admissible by the fact that the killing of the two children was alleged in the same information. All that was disclosed with reference to the appearance of the room where the crime was committed, or of the defendant himself, the condition...