Higgins v. Minaghan

• Citation: 78 Wis. 602,47 N.W. 941
• Parties: HIGGINS v. MINAGHAN.
• Decision Date: 03 February 1891
• Court: United States State Supreme Court of Wisconsin

78 Wis. 602

47 N.W. 941

HIGGINS

v.MINAGHAN.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from circuit court, Sheboygan county; N. S. GILSON, Judge.

Action by John Higgins against John Minaghan for shooting plaintiff in the leg while plaintiff and others were giving defendant a charivari. Plaintiff obtained judgment. Defendant appeals.Maurice McKenna, ( L. J. Nash, of counsel,) for appellant.

Duffy & McCrory, ( Charles E. Shepard, of counsel,) for respondent.

COLE, C. J.

We have had occasion heretofore to consider the transactions which gave rise to this action. Higgins v. Minaghan, 76 Wis. 298, 45 N. W. Rep. 127;Minaghan v. State, (Wis.) 46 N. W. Rep. 894. It is a matter of regret that the cause was not fairly tried at the last time, so as to stop this expensive litigation, which is ruinous to both parties, however it may finally result. But we think such error intervened on the trial that there must be a reversal of the judgment. The first error assigned which we shall notice was the manner of selecting the jury. On the voir dire the plaintiff's counsel was permitted to ask, against the objection of the defendant, whether the juror had any prejudice for or against charivari parties, or if he entertained any prejudice against parties that engaged in charivaring. The learned circuit judge seems to have had some doubt about the propriety of this course of examination, and, we think, it was wholly wrong. Every good, lawabiding citizen must and does condemn such unlawful and riotous assemblies. They are wholly indefensible in law and morals, and are reprobated by every well-disposed person. With the same propriety a juror called upon to try a man charged with a criminal act might be asked if he had or entertained any bias or prejudice for or against crime or criminals. Persons are undoubtedly entitled to a fair and impartial jury to try a cause; and, where it appears that a juror is prejudiced of course, upon a knowledge of the facts, or that he has bias or prejudice in favor of or against one of the parties, he is disqualified. But, if he has no actual bias, and is able to hear the evidence and decide upon it impartially, under the guidance of the court as to the law, whatever may be his views as to the enormity of crime, in the abstract, he is legally qualified as a juror. Such a juror will try the issues fairly, and without prejudice to the substantial rights of either party. The course of the examination as to the competency of the jurors we deem irregular and wrong. It resulted in excluding at least one qualified juror (De Smith) from the panel. We do not understand that a prejudice entertained by a juror against a particular crime constitutes a sufficient ground for excluding him when called to try a person for such offense. See Williams v. State, 3 Ga. 453; Parker v. State, 34 Ga. 262; U. S. v. Noelke, 17 Blatchf. 554, 1 Fed. Rep. 426; U. S. v. Hanway, 2 Wall. Jr. 139. It would be almost impossible to obtain a panel in a case if every citizen was excluded from it who had a prejudice against or was opposed to charivari, which is in law a crime. But, while we express our emphatic disapproval of the course pursued in the examination of the jurors on the voir dire, we do not reverse the judgment on that ground, but because the cause, we think, was not fairly submitted to the jury by the trial court. A number of instructions were asked on the part of the defendant, some of which were covered by the general charge; and some were refused which should have been given. The instructions and charge are too lengthy to be quoted verbatim, nor is it necessary, to make our remarks upon them intelligible. The really controverted question in the case was whether, under the circumstances, the defendant was justified in shooting the plaintiff as he did. The trial court, in considering the question whether the shooting was excusable or justifiable, said:

“The defendant, as he had a lawful right to do, on the 14th day of June, married a second wife, and took her to his home to live. On the night of June 18, 1887, the plaintiff and others--men and boys--proceeded to the defendant's house, and engaged in what is designated as a ‘ charivari,’ the nature and character of which is shown by the evidence. The same thing was repeated on the nights of the 22d and 25th of the same month. It was continued on the last night until the plaintiff was shot, when the crowd dispersed. What was done on each night is for you to ascertain and consider. The plaintiff was present on the 18th and 25th of June, as an actual participant, or aiding and encouraging the others, so that he is responsible for the acts, language, and conduct of each and every one constituting the charivari party, the same as if done by himself. He knew what had been done on the night of the 22d, before the commencement of the proceedings and disturbance on the 25th. The defendant, at these times, was in the peaceable pursuit of his own business, at home with his family, and entitled to enjoy domestic peace and tranquility, without disturbance or molestation from the plaintiff or any one else. These three gatherings by the plaintiff and others were composed of men and boys from the defendant's neighborhood, but whether he knew who they were at these times is, of course, a question for you to determine. The charivari parties consisting of the crowd in front of or upon the defendant's premises constituted an unlawful assembly; and by their transactions, conduct, and behavior became what is known in the law as a ‘riot,’ tending to the disturbance of the peace and the annoyance, if not the terror, of the defendant and others in the vicinity; they were trespassers in the highway. Where an unlawful assembly and riot, like the one in question, offers and threatens violence to person or property, it may and ought to be repelled with suitable and necessary force; but, where no violence is offered or threatened to person or property, no one is justified in unnecessarily or wantonly killing or wounding a person engaged in a charivari. The law provides a punishment for such unlawful acts. Persons thus engaged are not necessarily outlaws beyond the protection of the law, who may be slain or wounded without cause by any person not in any actual or apparent danger from their acts. To enable you to determine whether violence...