Frank v. State

• Citation: 68 N.W. 657,94 Wis. 211
• Parties: FRANK v. STATE.
• Decision Date: 13 October 1896
• Court: United States State Supreme Court of Wisconsin

94 Wis. 211

68 N.W. 657

FRANK

v.STATE.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Appeal from circuit court, Adams county; R. G. Siebecker, Judge.

John Frank was convicted of murder, and appeals. Affirmed.C. A. Fowler, for plaintiff in error.

J. L. Erdall, Asst. Atty. Gen., for the State.

CASSODAY, C. J.

The plaintiff in error was convicted of murder in the second degree for having shot and killed Joseph Vachuta, a boy 15 years of age, on the evening of April 13, 1895, and to reverse that judgment he sues out this writ of error. There is evidence in the record tending to prove that Frank did not, at the time, intend to kill the boy, but that he did kill him while attempting to shoot and kill one James Polivka; that Frank and Polivka were both farmers, having adjoining farms, and had, for some weeks prior to the shooting, been having trouble over a line fence; that each had threatened to kill or injure the other; that John Vachuta was the neighbor and friend of both of them; that on the evening in question Frank, while returning from his work, went into Vachuta's house, having his loaded shotgun with him at the time; that upon entering the room from the south side of the house he set down his gun near an inside door, and entered into conversation with Vachuta about Polivka; that Vachuta and his family were about to take supper, and he invited Frank to eat with them, which he declined; that Vachuta's family consisted of himself and wife and six or seven children, including the deceased; that while they were eating supper Polivka stopped at Vachuta's to get him to go with him to a neighbor's by the name of Shipley, to play cards; that when Vachuta's daughter stated that Polivka was coming in Frank jumped up, grabbed his gun, stepped back near the door leading into the east room, partially raised his gun, and cocked it, and said, “Let him come;” that, as Polivka came in the door on the south side of the house mentioned, Frank stood in the door between that room and the east room, and, aiming his gun at him, told him to come no further; that Polivka, who had no weapon, then said he had not come there to fight, nor to hurt him, nor to do anything, and said, “For God's sake, what is the matter with you? Are you crazy?” that Polivka took a short step forward, apparently to get by the muzzle of the gun, when Frank said, “Do not come another inch further, or I will kill you;” that Polivka then remonstrated that he did not come there for any fuss, or to hurt him, when Frank made a motion as if to get his gun up higher, Polivka jumped forward, grabbed hold of the muzzle of the gun, and pushed it down and to the side, and just then the gun was discharged, and the lamp went out, leaving the room in darkness, and when light was restored it was found that the boy Joseph was killed. This brief summary of the terrible tragedy is sufficient to enable us to consider the several errors assigned.

The trial court, among other things, instructed the jury to the effect that the plaintiff in error was not only charged of committing murder in the first degree, but was also charged of committing murder in the second degree, and of manslaughter in the fourth degree, as defined in the instructions to the jury; and that it was for them to determine whether he was or was not guilty of any of those offenses beyond a reasonable doubt; and that by the statutes the killing of a human being without the authority of the law, by shooting, was either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case. This is, in effect, the language of the statute. Rev. St. § 4337. No exception was taken to any of such portions of the charge.

1. Error is assigned because the court submitted the case to the jury on the charge of murder in the second degree. The statute declares that: “Such killing, when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, without any premeditated design to effect the death of the person killed, or of any human being, shall be murder in the second degree.” Rev. St. § 4339. The contention of counsel is to the effect that there is evidence in the record tending to prove that Frank discharged the gun with the “premeditated design to effect the death of” Polivka, and hence that the case was properly submitted to the jury to determine whether he was guilty of murder in the first degree as prescribed by the statute (Rev. St. § 4338). Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009. This being so, and the jury having, in effect, acquitted him of that offense, it is contended that there is no evidence to support the verdict of “murder in the second degree,” as prescribed in the section of the statute quoted. It is conceded that the killing was “perpetrated by” an “act imminently dangerous to others,” but it is contended that such act of killing did not evince “a depraved mind, regardless of human life, without any premeditated design to effect the death of the person killed, or of any human being”; and hence it is contended that the verdict is not supported by the evidence. As observed in the statement, althoughthe loaded gun was raised and cocked before Polivka touched the muzzle, yet it was not discharged until after Polivka had pushed the muzzle of the gun down and to the side. Manifestly, the gun was not pointed at Polivka when it was discharged; and there is no pretense that Frank intended to kill the boy, or any of the Vachuta family. If the jury believed that Frank discharged the gun, knowing that it was not then pointed at Polivka, then they were justified in finding that the killing was “without any premeditated design to effect the death” of any person. And yet it must be conceded by all fair-minded men that to cock and discharge a loaded shotgun in a small room, containing so many people, scattered as they were, evinced “a depraved mind, regardless of human life,” as the same has been repeatedly defined by this court. Hogan v. State, 36 Wis. 226; Bernhardt v. State, supra; Giskie v. State, 71 Wis. 612, 38 N. W. 334;Terrill v. State, 74 Wis. 284, 42 N. W. 243;Odette v. State, 90 Wis. 258, 62 N. W. 1054. The verdict is abundantly supported by the evidence.

2. If it was error to submit the case to the jury under section 4362, Rev. St., for want of evidence that the killing was done “in the heat of passion,” then it is very evident that it was not prejudicial error, since it gave the jury an opportunity to convict the accused of manslaughter in the fourth degree, instead of murder in the first or second degree.

3. If counsel is correct in claiming that it was error to so submit the case to the jury under section 4362, Rev. St., then there is no ground for claiming that it was error not to submit the case to the jury under section 4354, Rev. St., defining manslaughter in the third degree, for the like want of evidence that the killing was done “in the heat of passion.” But counsel is in no position to assign error for such failure to submit, since he made no request to so submit. Manning v. State, 79 Wis. 178, 48 N. W. 209;Zoldoske v. State, 82 Wis. 580, 52 N. W. 778;Winn v. State, 82 Wis. 571, 52 N. W. 775;Odette v. State, 90 Wis. 258, 263, 62 N. W. 1054.

4. Error is assigned because the court refused to hear further oral argument upon each of the several grounds upon which the motion to set aside the verdict and grant a new trial was based. In response to the request to be so heard, the court said that: “All of the questions involved as to the instructions given were submitted, and counsel presented his views to the court, and the court passed upon them before the case was submitted to the jury. As to the requests submitted by the defendant for instruction, they were submitted by defendant's counsel before the case was summed up to the jury, and defendant's counsel submitted his authorities, which the court read, upon the several requests, and the court heard him. In view of the facts as they have occurred, the court gave counsel for the defendant full hearing upon all the questions now raised by these exceptions.” For such reasons the trial court refused such request and overruled such motion. “With reference to the suspension of the sentence,” the trial...