Hoffman v. State

• Decision Date: 25 May 1894
• Citation: 88 Wis. 166,59 N.W. 588
• Parties: HOFFMAN v. STATE.
• Court: Wisconsin Supreme Court

88 Wis. 166

59 N.W. 588

HOFFMAN

v.STATE.

Supreme Court of Wisconsin.

May 25, 1894.

Error to circuit court, Marathon county; C. V. Bardeen, Judge.

August Hoffman was convicted of murder in the third degree, and brings error. Reversed.

The plaintiff in error was tried upon an information charging him with murder in the first degree, by killing and murdering William Herzog, with a premeditated design to effect his death, and was found guilty of murder in the third degree, and sentenced to 10 years' imprisonment in the state prison. He sued out a writ of error, and, after return to this court, it was assigned as error that there was nothing in the record to show that the plaintiff in error was personally present in court during the various stages of the trial and conviction. When the writ was sued out and return made, the record showed only that the accused was present when the information was read to him, and at no other time. At a subsequent term of the court, upon notice to the plaintiff in error and his attorneys, and by order of the circuit court, the plaintiff in error was brought from the state prison, where he was serving his sentence, to the court room; and on the evidence of the clerk and sheriff, and on motion of the district attorney, after argument on his behalf by his counsel, he being present, the record was amended nunc pro tunc, so as to show the presence of the plaintiff in error at each and every stage of the trial, conviction, and sentence. The amendment was made solely upon the testimony of the sheriff and clerk as to their recollection of the fact of his presence in court, and without memoranda, minute, or other record from which either of them could refresh his memory. He was then remanded to the state prison, and the action of the circuit court in the premises was duly certified to this court, as a part of the record in the cause. The information was filed against Albert Hoffman and Ferdinand Heise, as well as the plaintiff in error, but the two former were discharged at the close of the evidence.

The principal question arising upon the bill of exceptions is whether, upon the facts disclosed in evidence, the plaintiff in error was properly convicted of murder in the third degree. It was contended on the part of the state that, at the time the killing occurred, the plaintiff in error had raised a chair over one Risto's head, and made an assault upon him for the purpose of doing him great bodily harm, within the meaning of section 4377, Rev. St.; and that, while engaged in the commission of this felony, he killed the said William Herzog, who had interfered to prevent the plaintiff in error from carrying out his design to inflict great bodily harm on Risto, but without any design to effect his death; and that, therefore, he was guilty of murder in the third degree, under section 4345, Id.; and that Hoffman's felonious design and attempt against Risto furnished the implied malice necessary to make the killing of Herzog murder in the third degree. The killing occurred at a masked ball at a tavern and saloon in Rib Falls, Marathon county. Among the participants in the dance were the defendant and two of his brothers and his sister, and Robert Risto and two of his brothers. The defendant and Herzog were strangers, and first met on that occasion. Some of the parties became very much intoxicated and violent. The defendant and also his brother Albert got into an altercation with Robert Risto in the hall where the dance was proceeding, and the defendant and Risto had each exhibited a knife to the other, by way of caution or threat. Robert Risto and others started down the stairs, and the defendant and his brother followed. As Robert Risto went out of the hall door, he struck Albert Hoffman in the face, and there was a rush down the stairway, and the defendant and his brother Albert caught up with Risto in the hall below, where the stairway landed, and at the door of the saloon there was a struggle, in which the defendant, Albert Hoffman, Robert Risto, and his brother Gust. Risto were engaged. This was suppressed by the wife of the proprietor and others. The saloon was about 23x27 feet, with an outside door near the middle of the front, and a door in the back of the saloon opened into the liquor room. Going from the saloon there was a hallway about 10 feet long, on the left of which is a sitting room, and on the right an alcove, in which there was a wash room, a sink, etc. At the end of the hall is a door opening into the dining room, and going through this door there is another to the left, opening into the stairway, to a landing, where there is a door opening into the dance hall. In the struggle that ensued when the parties came downstairs into the saloon, it appeared that Robert Risto had snatched a metal faucet out of a beer keg, and hurled it at the Hoffmans, striking Albert Hoffman on the hand, and inflicting some injury. About eight or ten minutes after this difficulty had been suppressed, during which Robert Risto went outdoors, and came in again at the dining room, and so into the saloon, words passed and angry demonstrations occurred between him and Albert Hoffman in respect to the injury the latter received on his hand, when another encounter took place, which, though stated somewhat differently by those who saw it, yet with respect to the point material to the case, there does not appear to be any controversy or conflict of testimony. Albert Hoffman and Robert Risto were standing up and making motions to fight with their fists. A Mr. Wolf testifies: “Then I saw August Hoffman take up a chair to strike Risto. Then Herzog, the deceased, took hold of the chair, and August, the defendant,let go of it, and was going to strike Herzog. He let it go, and made motions to strike him. When Herzog took hold of the chair, I think he sat it down. I think the defendant let go of it. When the defendant took the chair, he was about face to Risto, and was about five feet off, and Albert Hoffman made motions to strike Risto. The defendant's back was turned to Herzog, and, when the latter seized the chair, the defendant turned around, and put himself in a parrying position. Herzog let go of the chair, and struck at him. I saw him strike the defendant in the face, and saw him fall backward. Herzog stepped up towards the defendant, made a step forward, and knocked him down. The defendant could have struck Herzog if he had wanted to when he first let go of the chair. He had the chair about half-way up when Herzog took hold of it, and it was still moving.” The witness Franke, who gave a pretty clear account of the encounter, testified: “I saw Albert Hoffman quarreling with Robert Risto, making motions to hit him. Risto was doing nothing. Then I saw the defendant take up a chair to knock Risto down, and Herzog was standing behind him, and took the chair away from him,--took it by the legs. Defendant let the chair go, and turned around to Herzog, and made motions to hit him. Herzog dropped the chair, and I saw him strike the defendant in the face. He fell down backward, clear to the floor. He jumped up again to his place, and I looked around, and saw Herzog fall down near the counter. When the defendant jumped up, he jumped to the place where I saw Herzog fall. Then the people rushed together, and I couldn't see. Next, saw Heise take a chair and strike Herzog, and then saw Herzog going around the saloon with his hands over his head. We took him over to the barber's chair. When I went into the saloon, Albert Hoffman and Risto were quarreling. That was the only thing that looked like a fight. When Herzog took hold of the chair, he held it in his hand, and said: ‘Two against one is too many.’ The defendant turned around, and made motions to hit Herzog, and he dropped the chair, and I saw that he struck the defendant first.” Other testimony showed that, when the defendant turned around quickly towards Herzog, he said sharply, “What?” and then had no weapon in his hand, so far as the evidence shows; that he said something, or tried to, as the chair was taken from him. It is claimed, and the testimony tends to show, that, when the defendant got up after having been knocked down by Herzog, he drew his knife, and in the struggle that ensued they both were thrown or fell to the floor, Herzog on top of the defendant; and in the struggle the fatal thrust or cut with the defendant's knife was given, which resulted in Herzog's death. There is no evidence showing, or tending to show, that, after the chair was taken from the defendant, he made any further demonstration against Risto, or that any one did. Risto testified substantially that he went out of the saloon, and did not return until after the affray was over. The evidence shows that the assault on Risto by the defendant had ceased before Herzog knocked the defendant, Hoffman, down, and clearly so before the latter used any violence upon or against Herzog. There is no testimony in the record to show that any assault was being made or violence directed to or against Risto at the time Herzog knocked the defendant, Hoffman, down. The evidence further shows that after Herzog and the defendant fell to the floor, as above stated, they both got up again, and the defendant struck Herzog a blow with a knife or other sharp instrument on the head when he was standing by the counter; that the fatal wound was in the left side of the chest, inflicted with a knife, penetrating the chest to the left of the medial line between the second and third ribs, three-quarters of an inch in length. There was a contused wound back of the upper part of the right ear, and an incised wound in the scalp on the left of the medial line down to the skull. The wound that caused death, was the knife wound in the chest.

On the subject of murder in the third degree, the circuit court charged the jury as follows: “Section 4345 reads as follows: ‘The killing of a human being, without any...