Ferry v. State

Decision Date06 April 1954
Citation266 Wis. 508,63 N.W.2d 741
PartiesFERRY, v. STATE.
CourtWisconsin Supreme Court

On March 18, 1950 an information was filed against Walter L. Ferry charging him with first degree murder. Trial resulted in a verdict of guilty of murder in the second degree returned on February 21, 1953. The case is here on a writ of error. Plaintiff in error, who will be referred to hereafter as 'defendant', was charged with the fatal stabbing of his wife. He interposed the defense of not guilty because of insanity.

Five forms of verdict were submitted to the jury: first and second degree murder, second degree manslaughter. not guilty because insane and not guilty. The jury found defendant guilty of second degree murder.

Kenneth E. Worthing, Fond du Lac, Judson J. Rikkers, Waupun, for plaintiff in error.

Vernon W. Thomson, Atty. Gen. William A. Platz, Asst. Atty. Gen., Frederic C. Eberlein, Dist. Atty., Shawano County, Shawano, for defendant in error.

GEHL, Justice.

Our conclusion makes it unnecessary that we recite the facts in detail.

Defendant contends, first, that the evidence does not sustain a conviction of second degree murder. The assignment cannot be considered by us in the absence of a motion to set aside the verdict and grant a new trial made before sentence and judgment. O'Toole v. State, 105 Wis. 18, 80 N.W. 915.

It is urged that the issue of second degree manslaughter was improperly submitted. As to the issue itself, counsel for defendant requested that it be submitted, and is in no position to assert error because his request was complied with. He attacks several of the instructions given with respect to the offense of second degree manslaughter. The question may not be raised for the first time upon appeal. Graves v. State, 12 Wis. 591; State v. Biller, 262 Wis. 472, 55 N.W.2d 414.

Defendant's principal attack is made upon the court's alleged error in permitting the state's medical experts to testify in a manner so as to invade the province of the jury. The testimony was received without objection; no motion to strike it was made. In fact, some of it was elicited upon cross-examination of the experts by defense counsel. In that situation counsel may not complain. Lyon v. Grand Rapids, 121 Wis. 609, 99 N.W. 311; Wolf v. Evans, 211 Wis. 601, 247 N.W. 844.

To deny defendant's application to this court for a new trial may, without considering the reason for the rules which we deem applicable and have applied, appear to be an arbitrary refusal. When an appellate court is called upon to review a conviction and to consider errors alleged to have been committed upon the trial it should have the benefit of the opinion of the trial judge who has before him a more complete picture than can be presented upon the printed page. He is in better position to determine whether the claimed errors were, if they are found to be errors, such as to prejudice the rights of the defendant and to influence the jury toward a conviction. Unless the error is called to his attention he is without ability to exercise his discretion to grant or deny a motion for a new trial and we are unable to determine whether there has been an abuse of discretion. Unless we are able to say that the court abused its discretion in denying the motion we are without power to disturb its ruling. Sweda v. State, 206 Wis. 617, 240 N.W. 369.

'If parties desire a reconsideration in this Court, they must first see that there has been a consideration in the court below.' Graves v....

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36 cases
  • Sparkman v. State
    • United States
    • Wisconsin Supreme Court
    • April 2, 1965
    ...231; State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9; State v. Dunn (1960), 10 Wis.2d 447, 103 N.W.2d 36; and Ferry v. State (1954), 266 Wis. 508, 63 N.W.2d 741. Moreover, the defendant's contention that he cannot be convicted on uncorroborated evidence of an accomplice is not true as a......
  • Holloway v. State
    • United States
    • Wisconsin Supreme Court
    • November 29, 1966
    ...525; State v. Shoffner (1966), 31 Wis.2d 412, 143 N.W.2d 458.9 State v. Dunn (1960), 10 Wis.2d 447, 103 N.W.2d 36; Ferry v. State (1954), 266 Wis. 508, 63 N.W.2d 741; State v. Hoffman (1942), 240 Wis. 142, 2 N.W.2d 707: Smith v. State (1911), 145 Wis. 612, 130 N.W. 461.10 United States v. D......
  • Massen v. State
    • United States
    • Wisconsin Supreme Court
    • January 7, 1969
    ...to the expense and inconvenience of prosecuting review proceedings. * * * 39 Am.Jur., New Trial, p. 42, sec. 17'.' Ferry v. State (1954), 266 Wis. 508, 63 N.W.2d 741. 'While we deem it highly desirable that the appropriate motions be made after trial in both jury and nonjury cases, the atto......
  • State v. Nutley
    • United States
    • Wisconsin Supreme Court
    • June 30, 1964
    ...Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.28 Irvin v. Dowd, supra.29 (1899), 105 Wis. 18, 80 N.W. 915.30 (1953), 266 Wis. 508, 63 N.W.2d 741.31 See Ullman v. State, ...
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