Dietz v. State

• Decision Date: 14 May 1912
• Parties: DIETZ v. STATE.
• Court: Wisconsin Supreme Court

149 Wis. 462

136 N.W. 166

DIETZ

v.STATE.

Supreme Court of Wisconsin.

May 14, 1912.

Error to Circuit Court, Sawyer County; Alex. H. Reid, Judge.

John F. Dietz was convicted of murder in the first degree, and brings error. Affirmed.

John F. Dietz, his wife, Hattie, and his son Leslie, were prosecuted for the murder of one Oscar Harp, and upon the trial of the case before the circuit court of Sawyer county, in May, 1911, the wife and son were acquitted, and John F. Dietz was convicted of murder in the first degree, and sentenced to imprisonment for life. He prosecutes this writ of error to reverse that sentence.

It appears that in October, 1910, and for 10 years or more previous to that time, John F. Dietz lived with his family upon a farm of 160 acres owned by him upon a small stream called the Thornapple river in Sawyer county, and 9 or 10 miles from the railroad station called Winter. Most of the farm was cleared, but it was surrounded by heavy timber. The road from Winter opens into the clearing near the northwest corner thereof. The buildings on the farm are all log structures and consisted of a house, barn, and roothouse; the barn being the most northerly of the group, and the house the most southerly. The barn is a two–story structure; the slopes of its roof being to the east and west, and the roof being covered with “shakes” instead of shingles. The river runs along the west side of the farm in a general northerly and southerly course. About 400 feet northerly from the barn there was a rise of ground referred to on the trial as the “lookout.” About 500 feet easterly from the buildings were several piles of lumber with alleys between. In September, 1910, a criminal warrant was placed in the hands of Michael Madden, the sheriff of Sawyer county, commanding him to arrest John F. Dietz for assault with intent to murder one Bert Horrell on the 6th day of September, 1910. The sheriff had other warrants in his hands for the arrest of Dietz for other criminal offenses alleged to have been committed during previous years, and, after having formed a posse of more than 20 deputies, he approached the Dietz farm October 6, 1910, and surrounded it; the deputies being armed with rifles on account of previous occurrences referred to in the opinion. Attempts were made on October 6th and 7th to induce Mr. Dietz to submit to arrest, but they failed, and on October 8th a formal siege of the buildings was inaugurated, and many shots were fired by the deputies at the buildings, and it is claimed that the fire was returned by Dietz himself and by members of his family. At about 11 o'clock in the forenoon, Deputy Sheriff Thorbahn, who was in charge of the proceedings, directed a number of deputies (among whom was Oscar Harp), who were located some distance to the east of the lumber piles, to move forward across a cleared field to the shelter of the lumber piles. They obeyed and proceeded toward the lumber piles on their hands and knees. As they were so doing, three shots were heard, and Harp was struck and killed by the first shot, while his companions reached the lumber piles. The claim of the state was that the shot in question was fired by Dietz from the upper story of the barn through what was called a porthole in the roof, made by removing one of the “shakes” of which the roof was composed. The claim of the defense was that this fact was not proven and that it was entirely reasonable to suppose that one of the deputies stationed on the westerly side of the farm fired the shot. All of the defendants declined to be defended by counsel, and neither of them was sworn as a witness. The trial occupied about 10 days.Maurice McKenna, J. E. Malone, and E. H. Naber, for plaintiff in error.

Levi H. Bancroft, Atty. Gen., Russell Jackson, Deputy Atty. Gen., and S. J. Williams, Dist. Atty. (V. W. James, of counsel), for the State.

WINSLOW, C. J. (after stating the facts as above).

The plaintiff in error (hereinafter called the “defendant”) claims error (1) in the admission of evidence, (2) in the instructions to the jury, and (3) in the denial of a new trial, and these claims will be discussed in the order named.

[1] I. The evidence in the present case disclosed a most remarkable transaction––one which would seem almost incredible in a state where law and order have been long established, were the evidence anything less than conclusive. A citizen of the state, a man of at least some property and substance, a man with a wife and family of children, apparently a man of intelligence and quick perception, sets at defiance the officers of the law, retreats to his home, wages actual war with the state, and only submits to arrest after a human life has been snuffed out as one might snuff a candle. There was, of course, some reason for this unusual display of force on the side of the officers of the law, and for this armed resistance on the part of the defendant. Sheriffs do not ordinarily proceed to make arrests with a score or more of deputies armed with rifles, nor do citizens ordinarily make fortresses of their homes and do battle with the duly constituted authorities of the state. A man who sees his home surrounded by armed men stealing from tree to tree and shooting to kill has a right doubtless to defend himself and his family by like methods, unless he knows that the purpose of the approach is rightful, and that he has only to submit to arrest by the official conservator of law and order to be entirely safe from violence. Upon the trial of the present case, the prosecuting attorneys doubtless realized the necessity of explaining and justifying the manner of the sheriff's approach, as well as the necessity of making it plain that defendant, in resisting arrest with firearms, was not acting in good–faith defense of his home and family from attack by persons who appeared to be wrongdoers, but rather in well–understood defiance of the lawful execution of legal process. In order to accomplish this purpose, a large mass of evidence was introduced by the state tending to show that, on a number of occasions during the seven years immediately preceding the death of Harp, the defendant had successfully resisted arrest on criminal warrants issued out of the state courts for various offenses, and had refused to permit service to be made upon him of injunctional orders and other civil process issued out of the federal court; that upon most of these occasions he had threatened to shoot the officers, had proclaimed that none of them should take him alive, and had used his rifle in driving them from his premises. One of the most aggravated instances of resistance to arrest so introduced in evidence was that of May 7, 1904, when Sheriff Giblin and his deputies, armed with a bench warrant and a criminal warrant against the defendant, were ambushed on the road by two disguised men with rifles, one of the men being identified as the defendant, and the other as one Weisenbach, a neighbor. For this offense Weisenbach was prosecuted and convicted, and the conviction affirmed by this court. Weisenbach v. State, 138 Wis. 152, 119 N. W. 843. Reference to the report of that case will show the details of the resistance to arrest on that occasion. It is not deemed necessary to go into the details of the various attempts to arrest the defendant which were related to the jury. None of them were successful. The officers of the law became thoroughly intimidated, and the unexecuted warrants remained in the hands of the various sheriffs, and were passed along as sheriff succeeded sheriff, becoming seemingly a part of the usual muniments of title to the office. Sheriff Madden received them on his accession to office, and they were still unserved when he received the warrant for the alleged assault upon Horrell in September, 1910.

The proof of these previous acts of resistance to the efforts of officers of the law to arrest the defendant was supplemented by proof that on the occasion in question, before the actual siege of the buildings was begun, Deputy Sheriff Thorbahn, who was in charge of the posse, sent a letter to the defendant, advising him to surrender, that resistance was useless, and that he would be treated right. It was further shown that upon the rejection of this warning, Mr. F. L. Gilbert, then Attorney General of the state, accompanied by Col. O. G. Munson, private secretary to the then Governor, Hon. J. O. Davidson, went to the defendant's house and had two long conferences with him and his wife, one on the 6th and one on the 7th day of October, in which conferences the defendant was urged to surrender himself and was guaranteed a fair trial in a county and with counsel of his own selection. This guaranty was in writing, signed by the Governor, and was left with him. In these conferences he was told of the whole situation, and that the officers had the entire place fully surrounded, and would certainly take him by force. The Attorney General in the last conference went so far as to propose that the criminal charges against all other members of his family, of which there were several pending, would be dismissed if he would surrender himself up. This offer was declined by the defendant, and he declined to consider the idea of surrender even in case all other criminal charges made against him were dismissed except the Horrell assault charge. No hostilities were begun until the day following the rejection of Mr. Gilbert's offers.

[2] It is very evident that the evidence of the frequent and uniform armed resistance to arrest on the part of the defendant through the years preceding the occurrence in question, together with the evidence showing the unsuccessful attempts to persuade the defendant to peaceably submit on the 6th and 7th of October, go a very long way to explain the extraordinary occurrences of October 8th, and throw much light upon the mental attitude of the defendant at that time. Due and seasonable objections were made by ...