Holtz v. State

• Decision Date: 25 February 1890
• Citation: 44 N.W. 1107,76 Wis. 99
• Parties: HOLTZ v. STATE.
• Court: Wisconsin Supreme Court

76 Wis. 99

44 N.W. 1107

HOLTZ

v.STATE.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Error to circuit court, Portage county.

Cate, Jones & Sanborn, for plaintiff in error.

F. B. Lamoreux, Dist. Atty., C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for the State.

ORTON, J.

The plaintiff in error was convicted of murder in the first degree, for the killing of Albert Buelow on the 2d day of June, 1887. The principal ground for the reversal of the judgment is that the verdict was not warranted by the testimony, and that ground will therefore be considered first, by a brief and substantial statement of the evidence that the jury had a right to believe. If the evidence on the part of the state was sufficient to warrant the jury in finding the defendant guilty, the verdict will not be disturbed by this court, however it may be contradicted or its credibility questioned, less than a full impeachment of the witnesses by the testimony on behalf of the defendant. The question, in such a case, must be left exclusively to the jury. The jury that rendered the verdict, and the court that refused to set it aside, heard the testimony of the witnesses, and were better able to judge of its credibility and effect than this court can be on this mere record of it.

Albert Buelow resided in the town of Buena Vista, Portage county. He was divorced from his wife, and his daughter, Augusta, the divorced wife of one Theodore Scheider, kept house for him. The other members of his family, at the time, were his two sons, aged 9 and 12 years, and Mary Scheider, aged about 15 years, the daughter of said Theodore by a former wife. There was evidently a very bitter feeling against Buelow among his immediate neighbors. The said Theodore Scheider pretended that Buelow had induced his daughter Mary to become an inmate of his family for the purpose of prostitution, and made some ado about it among his friends, some of whom pretended to sympathize with him, and made it the subject of discussion, when they met, as to what ought to be done about it. Some of them suggested that Mary be taken away from Buelow's, and sent to a reform school. To meet this pretext of a provocation for conspiring together to go to the house of Buelow on the night he was killed, the state introduced testimony tending to show that Mary was not on good terms with her step–mother, the present wife of Theodore Scheider, and that she was unwilling to have Mary live at home, and drove her away, and that her father consented that she might stay with his divorced wife, Augusta, at Buelow's house, and threatened her with personal violence if she again returned home. Others of his neighbors had personal grievances of their own against Buelow, and among them, the defendant had some trouble with him about the testimony in the divorce case of Augusta and Theodore, and Buelow was about to sue Frank Scheider, another of them, and another complained that Buelow had lied about him. But, whatever may have been the cause, one thing appears certain, and that is that the feeling of hostility against Buelow, of most of those who conspired to do him harm was, very bitter and intense. The evidence shows that, whatever had been previously said by any of them about going to Buelow's that night to take Mary Scheider away, the killing of Buelow was the principal subject of their conversation. Some of them opposed it at first, but finally all seemed to agree that he should be killed, and such was at last the settled purpose of the conspiracy.

It was proper for the state to prove that there was a conspiracy formed of divers persons, and that its object or purpose was to go to his house and kill Buelow that night. But we are principally concerned about the evidence that connects the defendant with it. Every time any of them met together on that day there was much said about going to kill Buelow. Was Charles Holtz one of the conspirators? is our present inquiry. I shall therefore consider, mainly, the testimony that connects him with the murder. In the forenoon of that day, Albert Sutheimer, Julius Botton, Frank Holtz, and the defendant were working on the road. The witness Albert Sutheimer testified that it was there and then he first heard about going to Buelow's house that night. Frank Holtz and the defendant had been talking about Theodore Scheider's daughter Mary, and the defendant said: “We will go there and hang him up to–night.” This was said about Buelow. In the afternoon, some others were there working on the road with them, and Buelow passed by; and Frank Holtz said: “Why didn't you knock him down?” The defendant or Theodore Scheider said: “If you want him knocked down, knock him down yourself.” About 6 o'clock in the afternoon, when the men were about to quit work on the road, one Joseph Polly, the path–master, was present. He testified that “Frank Holtz and the defendant were talking about hanging Buelow that night,” and Frank Holtz said: “We are going to take Buelow to–night. Can you go with us?” The witness said he would not, and then Frank said: “If six or seven go to hang a man, there would be nothing done about it.” The defendant was present, and heard what was said. The witness testified, further, that he heard more talk about hanging Buelow that night, in presence of the defendant. By previous agreement, common consent, or as a strange coincidence, those six or seven conspirators met early that evening at the house of one Keliss. Some of them came first, and there was considerable conversation among them about Mary Scheider, and about killing Buelow that night, before the defendant arrived. Three of them went into the brush where they expected Buelow would come along. Frank Scheider rested his gun on the fence, and showed the others how he would shoot Buelow, as he would a dog. Buelow came along, but they did not shoot. On their return, when they were about four rods from Keliss' house, Frank Holtz, one Timm, and Charles Sutheimer met them, and the defendant then came up. They were asked by some one why they did not shoot Buelow, and they were called a lot of boys. When they were all assembled, there were Herman Keliss, Frank Scheider, Theodore Scheider, Frank Holtz, Charles Holtz, the defendant, Julius Timm, and one Schulke, and Charles and Albert Sutheimer. Keliss and Frank Scheider had loaded guns, and Albert Sutheimer had a loaded pistol. There was then a temporary adjournment to make preparation to go to Buelow's, and to bring their guns. While they were all together at Keliss' house, much was said about killing Buelow. Four of them were armed with guns, and three of them with clubs; and the defendant, having no gun, had a club. The defendant, after he arrived, heard all that was said about going to kill Buelow, and participated with the others in making preparation for it. What was said after his arrival was a continuance or repetition of what was said before. His brother, Frank, told Albert Sutheimer “that he would have to carry a gun, and he laughed and said that he did not need a gun for that kind of a buck;” and the defendant said “that he acted like crazy, and that Buelow might have a gun, and shoot and hit him.” Then Timm and Keliss told him that he must have a gun, and he went and got one. There was a great deal of talk at Keliss' house. Some said that Buelow should be killed, and some said that he should be burned out, and some talked about Mary being at his house. But the preparations that were made were for the purpose of killing Buelow, and were suitable to that purpose. Then they all started for the swamp, on the way to Buelow's, and there halted for the arrival of others. Some one said: “If Buelow should come along now, he would be shot.” It was said that all who did not have guns should have clubs. One of them said that if they did not kill Buelow they would all be on fire to–morrow. One of the Hintz brothers, who had joined them there, said that “Buelow should be shot, and there should be no burning.” Frank Scheider said: “That's right, my boy.” After that there was no other purpose expressed by any one. The defendant did not dissent from this expressed purpose, but encouraged, if he did not himself suggest, it. When they were all assembled at the swamp, there were 13 or 14 of them, and at least half of them were armed, and probably all were. They again halted at the “four corners,” on their way, and then took a by–path for Buelow's home, and approached it at the side or rear. They scattered themselves about the privy, 5 or 6 rods from the house. There was ploughed ground about there, and it was tramped down by their feet. It was arranged that one should go to the window of the house, to see if Buelow was in, and he went and saw him, Augusta, and Mary inside, and reported that Buelow was there. Buelow heard the dog bark, and must have heard something else, for he went outdoors, and, as he was going, Augusta brought to him a butcher's knife, and he said he wanted it to defend himself. When a few steps from the house, with his face towards the privy and the men, he said: “Who in the devil is sneaking around here this time of night?” He must have seen some of the men, and they must have seen him. As soon as ...