Fertig v. State

• Citation: 100 Wis. 301,75 N.W. 960
• Parties: FERTIG v. STATE.
• Decision Date: 23 June 1898
• Court: United States State Supreme Court of Wisconsin

100 Wis. 301

75 N.W. 960

FERTIG

v.STATE.

Supreme Court of Wisconsin.

June 23, 1898.

Syllabus by the Judge.

1. The rule that all parts of a conversation, in substance at least, relating to a subject in controversy, must be produced in evidence, or all excluded, is not violated by permitting a person who can remember the particular language or the substance of it, relating to the fact in issue or the evidentiary fact sought to be established, to testify to such part, or by permitting part of the conversation to be testified to by one witness and part by another, if the portions together show, with reasonable distinctness, the bearing of the conversation on the fact in controversy.

2. It does not transcend the bounds of legitimate argument in a criminal case, for the district attorney, reasoning from the evidence in the case, to say that the accused is guilty of the offense charged. Within the record, the field of legitimate argument is broad enough to permit the prosecuting attorney to say, with the utmost freedom, what the evidence tends to prove, and that it convinces him, and should convince the jurors, of the fact in issue.

3. Where evidence strongly tends to prove the fact of guilt, it is not reversible error for the prosecuting attorney to assume the truth of such evidence, and say from it that the accused is what such evidence tends to establish in regard to guilt.

4. It is not error to allow the reading in evidence, by consent, in a criminal case, of unauthenticated minutes of the testimony of the accused given on a former trial for the same offense.

5. A general instruction on the subject of murder in the first degree, with which the accused was charged, and which the evidence tended to establish, having been given, it was not reversible error to not instruct on lesser degrees of homicide, as to which there was no request for instructions.

6. If there is evidence tending to prove the highest offense of criminal homicide, and yet evidence which would warrant a finding of some lesser degree, an instruction that the jury must find the defendant guilty of such highest degree, or render a verdict of not guilty, is favorable to the accused, not prejudicial.

7. The statute making the unnecessary killing of another, while resisting the attempt of such other to commit any felony or other unlawful act, or after such attempt shall have failed, manslaughter in second degree, does not include the intentional killing of such other with a deadly weapon on account of a mere trespass to property rights, or the intentional killing under circumstances where resisting the act of such other would be unlawful.

8. Where evidence, under the most favorable view that can be taken of it in favor of the accused, does not support any reasonable theory of guilt of a degree of felonious homicide other than murder in the first degree, the court is not bound, even on request, to instruct the jury in respect to lesser degrees.

9. Where the evidence strongly tends to establish murder in the first degree, or no offense of felonious homicide, the court may properly instruct the jury that they should find the accused guilty in such first degree or render a verdict of not guilty.

Error to circuit court, Dunn county; W. F. Bailey, Judge.

John W. Fertig was convicted of murder in the first degree, and brings error. Affirmed.

Error to review a judgment of the circuit court for Dunn county, rendered on a conviction for the crime of murder in the first degree.

The facts which are undisputed, or which the evidence tends to prove, are, that there was a dispute existing between John W. Fertig, plaintiff in error, and William Spaulding, relative to the right of the latter to take and remove some wood from a wood lot belonging to the former, Spaulding claiming that Fertig turned the wood out to him in settlement of a running account between them, which Fertig denied, and notified Spaulding not to remove the wood till settlement of their matters, particularly a dispute as to whether the latter's sheep had been in and damaged Fertig's grain; that, notwithstanding such notification, William Spaulding sent his brother Robert and a hired man, Albert Holstrom, each with a span of horses and wagon, after some of the wood, and while they were executing such direction, William called at Fertig's house, about 20 rods from the wood lot, and informed Mrs. Fertig of the facts, her husband being away from home; that she immediately went where her husband was working, and informed him of what William Spaulding said, whereupon he immediately proceeded to the wood lot, but finding that the men had loaded their wagons and departed, he went to his house, took and loaded his gun, and armed with it, hurried across the country in a direction to intercept the men on the road; that he reached the road, found that the teams had not passed, proceeded thereon till he met Spaulding, who was ahead, Holstrom being some distance back and out of sight, and there fatally shot Spaulding, the ball entering the body a little below the breast bone and taking a course a little downward and to the right. There was also evidence tending to show that the shooting was done while Fertig stood behind a tree, a little on one side of the road, the ground at that point being a little higher than where the deceased was when he received the fatal shot. There was little, if any, dispute but that the deceased, when shot, was driving along the road, sitting on the load of wood with his feet hanging down in front. The evidence further tended to show that the course of the bullet was consistent with the location of Fertig at the tree and the deceased on his load of wood, as before stated. The evidence further tended to show that after the homicide, Fertig proceeded up the road till he met Holstrom, who testified that the accused then stated to him that the wood was stolen; that he tried to stop Spaulding, when the latter picked up a stick of wood to strike the accused over the head with, and thereupon that he shot Spaulding before he, the accused, could think; and that after making such statement, he bade Holstrom good-by, saying, “You will never see me again,” and passed on, and Holstrom proceeded to the scene of the homicide where he found the body of Spaulding lying on the side of the road. The proof of what Fertig stated to Holstrom about the homicide was put in as a part of the state's case. There was considerable evidence tending to show that Fertig, on several occasions before the homicide, exhibited much feeling against William Spaulding in regard to the wood, and threatened to shoot the first man that tried to take it; and there was also evidence to the effect that the accused stated to the sheriff, and to Mr. Hancock, an attorney, that he supposed he had killed Robert Spaulding. Fertig testified in his own behalf, denying the evidence of the several witnesses as to his threatening to shoot the first man that attempted to remove the wood, and denied that he made any statement to the sheriff or Hancock in regard to having supposed he killed Robert Spaulding; and denied that he stated to Holstrom, shortly after the homicide, the circumstances of it as related by Holstrom. He further testified in his own behalf that when he met Robert he said, “Stop, I want to see you about the wood;” that Robert did not stop or speak, and as the team was about to pass the accused, he stepped up to them and turned, and reached out to take hold of the reins, throwing his gun across his left arm, when it was discharged; that the team passed on about two or three rods before he knew Spaulding was hurt, when he saw the blood from the breast; that Spaulding fell from the wood, striking on his head; then, about as the hind wheel was passing him, he tipped towards and against it, which carried his feet forward, so that when the wagon left him he lay with his head toward Fertig. The testimony of the accused, giving a somewhat different relation of the homicide upon two former trials, was read from the reporter's notes by consent, without such notes being in any way verified. There were some exceptions to the rulings on the objections to the remarks of counsel, also to the reception of evidence of witnesses of statements made by the accused before the homicide, upon the ground that they could not remember all of the conversations; also exceptions to the refusal of the court to charge the jury on the subject of murder in the second degree, and to the instructions of the court to the effect that defendant, on the evidence, was guilty of murder in the first degree, or not guilty and should be acquitted. The jury found the accused guilty of murder in the first degree, and proper proceedings were taken to preserve for review the exceptions referred to.

Spencer Haven, for plaintiff in error.

The Attorney General and J. L. Erdall, for the State.

MARSHALL, J. (after stating the facts).

The errors assigned on behalf of plaintiff in error will be considered in their order and are as follows: (1) The refusal of the court to strike out evidence of conversations damaging to the accused where a witness could not give all the conversation, or the substance of it; (2) permitting the prosecuting attorney to use improper language, detrimental to the accused, in closing his argument to the jury; (3) permitting reading from the reporter's minutes, the testimony of the accused on former trials for the same offense, without any verification of the same; (4) instructing the jury that the defendant was guilty of murder in the first degree or not guilty; (5) refusing to submit to the jury the question of manslaughter in the second degree as requested.

1. The rule that all parts of a conversation, bearing on the subject in controversy, must be taken together, and that if the whole of it, in substance at least, cannot be given, so that its...