Duthey v. State

Decision Date19 March 1907
Citation111 N.W. 222,131 Wis. 178
PartiesDUTHEY v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Error to Superior Court, Douglas County; C. Smith, Judge.

Edward Duthey was convicted of murder in the second degree, and he brings error. Reversed and remanded.

Writ of error to review a conviction for murder in the second degree, for that the plaintiff in error, hereafter called the defendant, murdered his wife, on the 3d day of September, 1905, by shooting her. The proof of specific facts was almost without dispute. The defendant, 38 years of age, a laborer, had been married about eight years to the deceased, who had two children, a girl and a boy, four and eight years of age, respectively. He was domestic and industrious in habit, and had accumulated some considerable property. He became suspicious of the relations of his wife with one Langreet and one Blyenberg. At his wife's persuasion, he gave her $500, whereupon she took the daughter, eight years old, and disappeared. He later discovered that she was in Seattle, living with Langreet. He went there to break up the relations, but was met by his wife with conciliatory proposals, and they returned to Superior. She, however, refused to live with him, but occupied a separate house belonging to her brother. He became persuaded that she had deceived him in order to screen Langreet at Seattle. On the night preceding the killing he learned that Langreet had returned, and that he and defendant's wife intended to marry. According to his testimony, this situation created such a condition of mental and nervous disturbance as to entirely unbalance him. He describes the situation as well as he can, in broken English, he being a Belgian: On the next day sees Blyenberg and Langreet together and imagines that they are making him subject of ridicule, and later sees Langreet with his wife, and conceives similar conduct on their part, some time about 5 o'clock p. m., on the day of the shooting. From that time he describes himself as wholly unable to remember his acts, although he recalls certain isolated facts. Between 7 and 8 o'clock he went to the saloon of Blyenberg, where Langreet was likely to be, went up to the bar and shot Blyenberg, and it is supposed would have shot Langreet, but the latter made his escape through the back door. Thereafter he went seven or eight blocks, to the house where several persons, including his wife, were sitting, pushed open the door, thrust his right hand with the revolver through it, and shot; the bullet striking his wife so that she died before morning. He professes to have had no knowledge of shooting her, and was greatly distressed when so informed the next day. A plea of insanity was introduced, which was tried separately, and a verdict of sanity found, and thereupon, on trial of the issue of guilt or innocence, he was found guilty of murder in the second degree, and duly sentenced.W. P. Crawford, for plaintiff in error.

F. L. Gilbert, Atty. Gen., and A. C. Titus, Asst. Atty. Gen. (W. R. Foley, of counsel), for the State.

DODGE, J. (after stating the facts).

1. The most radical and conclusive assignment of error, though not the first in order on the brief, is the refusal of the trial court to submit any other degree of homicide than murder in the first and second degrees, although specifically requested in writing to submit third and fourth degrees of manslaughter. If the evidence, in any reasonable view, could support either of these lower degrees, this refusal was error, from which prejudice to the defendant is undeniable. Perkins v. State, 78 Wis. 551, 558, 47 N. W. 827;Terrill v. State, 95 Wis. 276, 291, 70 N. W. 356;Murphy v. State, 108 Wis. 111, 117, 83 N. W. 1112;Montgomery v. State, 128 Wis. 183, 197, 107 N. W. 14. Each of these crimes may be committed in different ways, and one phase of each consists in the involuntary killing. Sections 4355, 4362, St. 1898. Since the discharge of the pistol, a dangerous and deadly weapon, was clearly by the volition of the accused, so that there was no element of accident or inadvertence therein, this element of involuntary killing, as distinguished from a killing merely without a design to effect death, could not, in any view of the evidence, have existed in the light of the definition of involuntary killing as recently promulgated in Johnson v. State (Wis.) 108 N. W. 55, 59. Nor do we think it possible to have been concluded from the evidence that any phase of homicide covered by section 4363, St. 1898, occurred; that is the omnibus section, for “every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.” When, however, we turn to section 4354, St. 1898, we find it to declare: “Any person who shall kill another in the heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed guilty of manslaughter in the third degree.” It will be noted that the distinguishing elements here are (1) heat of passion; (2) absence of design to effect death; and (3) by a dangerous weapon. That there was evidence to establish heat of passion, as the phrase is used in the law, the trial court was, evidently, fully convinced; for, throughout the charge on the issue of sanity, he over and over again explained to the jury the duty to refrain from a finding of insanity if the acts were due merely to heat of passion––instructions which, in themselves, must have been erroneous and prejudicial if there was no evidence of such a state of mind. There can be little doubt, however, but that the jury might have found such a condition to exist. The evidence shows the defendant in a much perturbed and erratic mental condition for some days before the homicide, from the relations between his wife and Langreet, and shows, as expressed in the statement of facts, certain very disturbing events and information on the night before and the day of the killing, indicating to him that he had been deceived in the apparent partial reconciliation and reformation of his wife, but that a renewal of her relations with Langreet was intended by both. The sight of the man himself on this day, and especially the sight of him and the wife about 5 o'clock in the afternoon, flaunting their intimacy in public, and, as he believed, accompanying it with signs and conduct of ridicule of himself, were all events which might well produce that blind anger which the law calls heat of passion; and, while the defendant in his own testimony asserts rather delirium and unconsciousness of his acts, this statement might have been disbelieved by the jury and the inference of violent passion drawn from the facts that an hour or two later he equipped himself with his revolver, rushing to the saloon where he expected to find Langreet and his companion and abettor, Blyenberg, and there, in the midst of a number of people, shot Blyenberg and pursued Langreet, and after that was seen rushing, apparently blindly, along the sidewalk, so that people had to make way for him, to places where he apparently suspected his wife and Langreet might be, until he reached her brother's house, where, thrusting open the door of a room containing herself, a brother of Langreet, and several other persons, he fired his pistol, without pause, his presence having occupied but a second of time according to the testimony of the witnesses. A defendant's own declarations, even under oath as a witness, are not conclusive against him if other evidence justifies an inconsistent conclusion as to the fact. Montgomery v. State, supra. There was other evidence which might have been construed by the jury as indicating the confused or even unconscious condition of mind or the blindness of rage and passion, consisting in description of defendant's conduct during this same period of time. The next characteristic of the crime described by this section is that the killing shall be without a design to effect death. The evidence already recited the suddenness of the shooting upon the throwing open of the door into a room where were seated a large number of persons, the remark accompanying that act, “I am not allowed to come in here anyhow,” and the showing of confusion, excitement, and nonobservance of things about him, seem to us fully sufficient to have warranted the jury in believing that the shot was fired with no design to kill any particular person, even though the defendant were not in that irrational state which the law recognizes as insanity. These were supplemented by proof of exclamations and apparently unpremeditated utterances made the same evening after arrest and next morning, indicating ignorance of and surprise at the fact of her injury and death. That the third element, namely, the use of a dangerous weapon, existed, is undisputed. All these things might have existed without there having been either justifiable homicide, as described by section 4366, or excusable homicide under section 4367, of which we shall have to speak later. We are persuaded, therefore, that defendant was entitled to have the jury pass upon the phase of manslaughter in the third degree defined in section 4354, and that refusal of the request for instruction to that effect was error necessitating reversal and new trial.

2. We may say in this connection, for convenience, that we find no phase of the evidence at all consistent with justifiable homicide defined in section 4366, each phase of which involves some element of self–defense or enforcement of a duty; nor of excusable homicide under section 4367, which is excluded by use of a dangerous weapon, if by no other circumstance. Hence must be overruled assignments of error upon refusal to submit such sections to...

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