DeVroy v. State

• Decision Date: 13 January 1942
• Citation: 1 N.W.2d 875,239 Wis. 466
• Parties: DEVROY v. STATE.
• Court: Wisconsin Supreme Court

239 Wis. 466

1 N.W.2d 875

DEVROY

v.STATE.

Supreme Court of Wisconsin.

Jan. 13, 1942.

Error to review a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Affirmed.

Prosecution and conviction of Joseph Devroy for murder in the first degree for the killing of Emily Kaiser on July 25, 1939.

G. F. Clifford, of Green Bay, for plaintiff in error.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Donald W. Gleason, Dist. Atty., of Green Bay, for defendant in error.

FRITZ, Justice.

On a trial of the prosecution which resulted in the judgment under review, the jury found Joseph Devroy, the plaintiff in error, guilty of murder in the first degree for killing Emily Kaiser on July 25, 1939. On that day Devroy went to the premises where his wife, Lena Devroy, lived with her mother, Emily Kaiser, and there killed both of them with five shots fired by him with a revolver. The jury's verdict was well warranted by the evidence, and the conviction must be sustained unless error, affecting substantial rights of the defendant, occurred on the trial in the respects hereinafter considered. No useful purpose will be served by a detailed statement of the facts, excepting insofar as they are involved in passing upon the errors assigned by Devroy in this court.

His first assignment of error is that the court erred in denying his request to submit to the jury the issue of manslaughter in the third degree. That request was denied on the grounds that the evidence did not admit of finding that the killing was “in the heat of passion” and that it was “without design to effect death”. Evidence reasonably admitting of findings in each of those respects was necessary to constitute the killing but manslaughter in the third degree under the definition thereof in sec. 340.18, Stats.; and in the absence of evidence to establish such findings, the only forms appropriate for a verdict herein were those submitted by the court, viz., “Not guilty, because insane at the time of the commission of the crime”; “Guilty of murder in the first degree as charged”; “Guilty of murder in the second degree”; and “Not guilty”. In passing upon the assignment of error in question there are applicable the rules that-“to justify a conviction, and submittal for conviction of a lesser offense included within the greater, ‘there must be some reasonable ground on the evidence, in the judgment of the court, for a conviction of the former and not of the latter.’ In the final analysis of the evidence, the test to be applied, in determining whether lesser degrees of the offense charged are to be submitted on request, is whether in any reasonable view of the evidence there is reasonable ground on the evidence, in the judgment of the court, for a conviction of the lesser offense and not the greater.” Sweda v. State, 206 Wis. 617, 625, 240 N.W. 369, 372;Hempton v. State, 111 Wis. 127, 140, 86 N.W. 596;Weisenbach v. State, 138 Wis. 152, 119 N.W. 843;Krueger v. State, 171 Wis. 566, 578, 177 N.W. 917;Meyer v. State, 176 Wis. 184, 187, 185 N.W. 520.

On behalf of Devroy it is claimed that the killing of Emily Kaiser was in the heat of passion could be inferred by the jury from evidence to the following effect. Emily Kaiser had led Devroy's wife into a life of crime, had a bad influence upon her, and was taking her away from him and keeping her in a life of crime. He was a law-abiding citizen and using every effort to make his wife behave and still loved her and was always very good to her; and in endeavoring to get her to abandon her improper conduct, was taking drastic measures to prevent the renewal of a tavern license to her by a town board. There was also considerable bitterness because he believed that through the efforts of Emily Kaiser he had been gotten to deed property to his wife, which he was told subsequently he could not have returned to him because he had claimed, in going through bankruptcy, that he owned no property. In spite of his efforts to prevent his wife from living a criminal life, she left their home and lived with Emily Kaiser, who thereby frustrated his plans to his bitter disappointment. A few days prior to July 25, 1939, he entered Mrs. Kaiser's house against her will and found his wife sitting in a room with another man and found also a couple sitting on a bed in another room; and in speaking about this to others he stated that if he had been there an hour later he would have caught his wife in bed with another man. About 11 A. M. on July 25, 1939, there was served on Devroy a complaint for a divorce in which it was stated that he was the wrongdoer and had only $283 worth of property; and that there should be taken away from him the property-of which he believed half to be his and that he had been swindled out of it through Emily Kaiser. With this complaint there was served also an order requiring Devroy to vacate the property which he considered his own place, and to turn the keys over to the deputy sheriff who served the papers. This constituted such a climax to him that he sat down and put his head between his hands and said to the deputy, “God, man, do you realize what they are doing to me? * * * Come on I want to show you what they are taking away from me.” Then he induced a friend, Fred Calmus, who was present when the papers were served, to accompany him in his automobile to Emily Kaiser's home to try to effect a reconciliation. Calmus went alone to her door and she asked what he wanted, and he replied that Devroy wanted to see Mrs. Devroy. Emily Kaiser replied that he could not see anybody, “Joe is crazy”; and that was communicated to Devroy by Calmus upon returning to the automobile. In returning he walked through an alley and was met by Devroy, who was driving in such high state of nervousness and so excited and irritable that he nearly ran over Calmus. About 3 o'clock that afternoon Devroy went to the Kaiser premises and there shot and killed his wife and her mother. He then drove from her residence in the city of Green Bay to a farm on which his sister and mother resided. En route he stopped off to write a note, which reads: “Well it to bad, writ, it all over, our troubles are ended, if she hadent sneaked out for the last ten years after twelve and one o'clock in the night, everything would have been all right, but she was not satisfied, so she turned out to be inmate at her mother running house ill fame av. 514 Mather. So both our wishes are to be creamted and our ashes put in a sauvener casket and have Deyone at the Brown county airport to straw the ashes over our field. Lot of people thinks that a man must be insane to thinks like this but they are wrong. It is merely to bring justes to the family, not put them under shame-the girls that has worked here, they can tell wan all about it. So by, by Merrina and Ray.” He also stopped at a tavern where he was seen by a boy who testified on the trial that he noticed that there were beads of sweat on Devroy's forehead; that his eyes were round, staring, glassy, and he did not recognize the boy although he knew him well; and that he showed evidence of rage, fear, confusion and mental disturbance. At his sister's farm Devroy talked excitedly to his mother and kissed her and then...