DiLlon v. State

• Decision Date: 26 January 1909
• Citation: 137 Wis. 655,119 N.W. 352
• Parties: DILLON v. STATE.
• Court: Wisconsin Supreme Court

137 Wis. 655

119 N.W. 352

DILLON

v.STATE.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Error to Circuit Court, Racine County; E. B. Belden, Judge.

William Dillon was convicted of murder in the second degree, and he brings error. Affirmed.

The plaintiff in error (hereinafter called the defendant) was convicted of the crime of murder in the second degree in the circuit court for Racine county in November, 1907, and was sentenced to imprisonment in the state prison at Waupun for the term of 17 years, pursuant to the judgment of conviction. To review such judgment, he brings the case to this court on a writ of error, and makes the following assignments of error:

(1) The refusal of the state to call the eyewitness Hans Gibson to the stand before resting its case. (2) In submitting to the jury the question of defendant's guilt of murder in the second degree. (3) In refusing to submit to the jury the question of defendant's guilt or innocence of manslaughter in the first degree. (4) In refusing to submit to the jury the instructions requested upon “heat of passion,” “reasonable doubt,” and “duty to retreat.” (5) In charging the jury in reference to “heat of passion,” “reasonable doubt,” and “duty to retreat.” (6) In so submitting the case to the jury as to require it to first pass upon the guilt or innocence of the defendant as to murder in the first degree, and in excluding from its consideration the lesser degrees of homicide until in each instance it had determined the innocence of the defendant as to all higher degrees of offense. (7) In repeating and reiterating all higher degrees of the offense of felonious killing when submitting the lower degrees of such offense. (8) In saying to the jury that it was its duty to base its verdict as to affirmative matters upon the evidence or want of evidence in the case.

The evidence, in so far as it is material to the consideration of the errors assigned, will be found in the opinion.

Thomas M. Kearney and Mortimer E. Walker, for plaintiff in error.

F. L. Gilbert, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Fulton Thompson, Dist. Atty., for the State.

BARNES, J. (after stating the facts as above).

1. The defendant contends that the court, upon his request, should have directed the district attorney to call and examine one Hans Gibson, an eyewitness to the transaction; failing in this, that the court should have called said Gibson to the stand, to the end that the jury might have the benefit of the evidence of all the eyewitnesses to the homicide before the state rested its case. The denial of the requests made to this end is assigned as error.

The rule requiring the state to call eyewitnesses in a homicide case became well established in the English system of jurisprudence at a time when a defendant himself was denied the right to testify or to call witnesses in his own behalf, and when he was even denied the right of counsel. The rule no doubt was adopted to mitigate the rigor and harshness of the situation in which an individual, bound to defend himself in a case involving capital punishment, was placed by the English system of jurisprudence as it was. While the reason for the rule has ceased to exist, some courts still adhere to the ancient doctrine. People v. Deitz, 86 Mich. 419, 49 N. W. 296;Territory v. Hanna, 5 Mont. 248, 5 Pac. 252. The question is a new one in this state, and it is important in the administration of criminal law. To adopt it is to require the state to call a witness to establish its case whom the prosecuting attorney may believe is dishonest, or has been corrupted, and is willing to commit perjury to aid the accused, either from motives of friendship, interest, or relationship. The pursuit of such a course might often place the state at an unfair disadvantage, and preclude it from showing many things that might fairly discredit such a witness. The defendant has a right to secure the testimony of such a witness if he desires, and, this being true, it would not seem that he is deprived of any right essential to his making a complete defense by reason of the failure of the state to call the witness. It is true that it is often an advantage to have the right of cross rather than direct examination. It may also be advantageous to prevent the cross-examination of a witness by the opposite party, and, in the ordinary action, the party who calls a witness vouches for his probity to a certain extent. But, while it may be a tactical advantage to the defendant to require the state to call a hostile witness whom the law officers believe may not tell the truth, it by no means follows that it is an advantage to which the defendant is legally entitled. Prosecutions in criminal cases should be carried on without malice, and without desire or intent on the part of the prosecution to secure a conviction where the evidence does not warrant it. On the other hand, it would seem to be proceeding beyond the bounds of reason or of justice to require the state in all instances to call all eyewitnesses to the commission of an alleged crime. The weight of authority in this country is certainly against the contention of the defendant. State v. Eaton, 75 Mo. 594;State v. McAfee, 148 Mo. 370, 50 S. W. 82;State v. Barrett, 33 Or. 194, 54 Pac. 807;Ross v. State, 8 Wyo. 351, 57 Pac. 924;Keller v. State, 123 Ind. 110, 23 N. E. 1138, 18 Am. St. Rep. 318;Reyons v. State, 33 Tex. Cr. R. 143, 25 S. W. 786, 47 Am. St. Rep. 25;State v. Baxter, 82 N. C. 602;Hill v. Com., 88 Va. 633, 14 S. E. 330, 29 Am. St. Rep. 744;State v. Morgan, 35 W. Va. 260, 13 S. E. 385;State v. Payne, 10 Wash. 545, 39 Pac. 157;State v. Hudson, 110 Iowa, 663, 80 N. W. 232;Com. v. Haskell, 140 Mass. 128, 2 N. E. 773; 12 Cyc. 550, and cases cited under note 18; 14 Cent. Dig. “Criminal Law,” § 1570.

It is held in some jurisdictions that the right of the state to refuse to call an eyewitness in a criminal case is not arbitrary, but is subject to judicial discretion. Carlisle v. State, 73 Miss. 387, 19 South. 207; U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; People v. Robertson, 67 Cal. 646, 8 Pac. 600; 14 Cyc. 549. While we do not decide that in no case is it proper to require the state to call an eyewitness, we do hold that it is within the discretion of the trial court to refuse such a request, and that such ruling will not be held erroneous unless there is an abuse of such discretion, and that this case does not disclose any abuse of the discretion of the trial court in this regard. We do not think the claim here made, that Gibson was the only eyewitness to the entire transaction that led up to the homicide, was sufficient to render it obligatory upon the state to call him, in view of the relations existing between him and the defendant, and the apparently conflicting statements made by him in reference to the occurrence.

2. It is next contended that the evidence did not warrant a conviction for murder in the second degree, and that this degree of homicide should not have been submitted to the jury for consideration. No useful purpose would be served by stating the evidence justifying the submission of this degree of homicide. Under the decisions of this court in the cases of Odette v. State, 90 Wis. 258, 62 N. W. 1054,Flynn v. State, 97 Wis. 44, 72 N. W. 373, and Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809, the court was clearly right in its submission of murder in the second degree.

3. The defendant requested the court to submit manslaughter in the first degree, requesting a charge thereon in the language of section 4346, St. 1898, which request was refused. In order to justify such charge, it should appear from the evidence (1) that the killing was done without design to effect death; (2) that it was done by the act, procurement, or culpable negligence of the defendant; and (3) that it was done while defendant was engaged in the perpetration of a crime or misdemeanor not amounting to a felony, or while he was attempting to commit such crime. There was testimony tending to show that the killing was done without design to effect death, and the evidence is practically undisputed that the killing was done by the defendant. If there was any credible evidence in the case sufficient to support a conviction and tending to show that the killing was done while the defendant was engaged either in perpetrating or in attempting to perpetrate a crime or misdemeanor not amounting to a felony, the charge requested should have been given. Montgomery v. State, 128 Wis. 183, 197, 107 N. W. 14;Duthey v. State, 131 Wis. 178, 182, 111 N. W. 222, 10 L. R. A. (N. S.) 1032, and cases cited; Terrill v. State, 95 Wis. 276, 70 N. W. 356. The evidence in this case fails to show that the killing was done while defendant was engaged in the perpetration of a crime or misdemeanor not amounting to a felony, or in an attempt to perpetrate such crime or misdemeanor, and, this being true, it was not error to refuse to charge as requested. Fertig v. State, 100 Wis. 301, 75 N. W. 960;Montgomery v. State, 128 Wis. 183, 197, 107 N. W. 14. There is some testimony tending to show that, a short time before the shot was fired which resulted fatally, the defendant kicked, or kicked at, the deceased, under such circumstances as might render him guilty of either an assault or assault and battery. There is no testimony which has even a tendency to show that the killing was done while the defendant was engaged in the perpetration of such assault. The testimony of the witnesses is not in harmony as to the length of time that elapsed between such assault and the shooting. The sworn testimony given on the trial is to the effect that after such assault took place the deceased retreated to the door of the saloon, and either went out or went partially out, the defendant following him up, for the purpose, he says, of closing the door. The deceased pushed the door open, and, according to some of the...