Jambor v. State

• Decision Date: 25 February 1890
• Citation: 44 N.W. 963,75 Wis. 664
• Parties: JAMBOR v. STATE.
• Court: Wisconsin Supreme Court

75 Wis. 664

44 N.W. 963

JAMBOR

v.STATE.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Error to circuit court, Racine county.

John T. Fish, for plaintiff in error.

C. E. Estabrook, Atty. Gen., L. K. Luse, Asst. Atty. Gen., and H. A. Cooper, Dist. Atty., for the State.

COLE, C. J.

It was charged in the information that the plaintiff in error, the defendant below, did, at the city of Racine, Wis., on the 15th day of June, 1886, attempt to murder Martin M. Secor by means not constituting an assault. The information charges that the means by which the crime was attempted to be committed was a metallic bomb containing loose nails and pieces of iron, and charged with a quantity of powerful explosives, to explode the same with deadly force and violence against the body of said M. M. Secor, and which bomb was so arranged with strings and appliances as to cause it to explode. No question is made as to the sufficiency of the information, which is founded upon section 4374, Rev. St., and which reads: “Any person who shall attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting an assault, with intent to murder, shall be punished,” etc. The defendant was convicted on the trial with the crime charged, and was sentenced to imprisonment in the state–prison for 10 years. This writ of error is prosecuted to reverse the judgment.

The learned counsel for the defendant insists that the evidence in the record is entirely insufficient to sustain the conviction. This is the principal point upon which the most reliance seems to be placed, as we understand counsel, though other errors are assigned. It is manifest that the objection involves an examination of all the evidence given on the trial, in order to ascertain whether or not it is well taken. We have given the testimony in the case as full and careful an examination as our other duties will permit, and feel constrained to say that, in our judgment, it justifies the verdict. The testimony is quite voluminous, and it is impossible to even allude to all those portions of it which sustain the conclusion we have reached.

It may be observed, at the outset, that it is indisputable that on the evening of the 15th of June, 1886, at about 10:20 P. M., a bomb containing explosives and missiles was exploded, which bomb was placed on the north side of the drive–way leading from Milwaukee avenue into the premises where Mr. Secor resided, and was so arrangedas to be exploded by means of a friction primer with a cord attached, which cord was made and kept taut by passing through the eye of a small iron rod, sharp at the other end, and stuck in the ground. The cord was about 10 yards in length, and a small block or cork was fastened on the end, so as to prevent it from being drawn through the eye of the rod when pulled. This cord extended south across the driveway, and the inference is irresistible, from the position of the bomb and the appliances for exploding it, that the party placing it there expected and intended it would be exploded by a person driving a horse and carriage against or across it, over the drive–way into the Secor grounds. It seems to us that this is the only possible or rational inference which can be drawn from the facts. The evidence which tends to criminate the defendant, and connect him with the act of placing the bomb where it was exploded, is circumstantial. It is admitted that he was at the place of the explosion. Indeed, it appears that he exploded it himself, by walking against the string while crossing the street from the east to the west side, if his testimony is to be believed, not knowing that such a deadly instrument was there, and was wounded in several places by the missiles which it contained. The theory of the prosecution is that he accidentally exploded the bomb while attempting to remove it, after Mr. Secor had driven home that evening. It appears the defendant lived in Milwaukee, was a machinist, and worked in the machine–shops of E. P. Allis & Co., of that city. It further appears, from the defendant's testimony, that he worked all day, on the 15th of June, at his usual employment, until 6 o'clock P. M., then went home, got his supper, and at 8 o'clock took the St. Paul train for Racine, at which place he arrived at about 9:35. He had a partner by the name of Palica, and they were engaged in the manufacture of trunks at Racine. Palica had charge of the business, and the defendant contributed money, from time to time, as it was needed. He says, in effect, that he went to Racine that evening to take some money to his partner; that when he reached Racine he went to the office of Palica & Co.; that he opened the door with a key which he carried, went inside, lighted the lamp, opened the safe with a key he had, he knowing the combination, and put two $100 bills in the inside safe, then locked the safe, and sat down by the desk, and looked over photographs and catalogues which they had just gotten up. He stayed there 15 or 20 minutes, waiting for Palica to come. Palica not coming, he got up and left the office, locking the door, and started to go to Palica's house, which was five blocks distant north. When he came to Hamilton street, about two blocks from the office, he changed his mind about going to the house, thought he would let Palica know by mail the next day that he had placed $200 in the safe, and turned west on Hamilton street, to go to the North western depot, to take the train over that road, which left at 11:10. When he reached Milwaukee avenue he turned and went south, on the east side of that street, until he came nearly opposite Secor's house, when he saw a man on the sidewalk ahead of him; and then he turned and went across the street. As he crossed the street, and came to the sidewalk, the explosion occurred. At first, he thought he had been shot, or that some one was going to rob him; but, without making any outcry, or giving any alarm, or calling for help, he passed down Milwaukee avenue south to State street; thence east on State street to Main street; then to Palica's office, and back to Main–Street bridge, leading north, where he met Palica, and told him he had been shot in front of Secor's residence, while he was going to the depot. He says he remembered nothing after the explosion except being on Milwaukee avenue and on State street; did not remember seeing or meeting any one until he met Palica on the bridge,––which we suppose was a mile distant from where he was wounded.

This, in brief, is the account which the defendant himself gave of the business which took him to Racine that evening, and of how he happened to be at the place when the bomb was exploded. It seems he went to take money to his partner,––that was his business,––and he left the money at the office, in the safe, without informing his partner that he had been there, and without having any understanding with him that he would be at Racine that evening, or at any other time. It is needless to remark that this is not the usual way in which such business is transacted, and what adds to the strangeness of the story is the fact that Palica was at Milwaukee the Sunday previous, or two days before, having gone there especially to see the defendant, and get some money from him, but returning without it, though the defendant met and was with him for an hour and a half in the city, and had the money at home, in his house. The explanation which he gives of the matter was before the jury, whose duty it was to judge of the credibility of his statements about this and other circumstances which had a tendency to discredit him. But the defendant swore positively that he had no knowledge of the bomb, and knew nothing about who placed it where it was found. His evidence is distinct, positive, and sufficient to establish his innocence, if he is to be believed. The jury had this testimony before them, as well as the testimony of other witnesses, who swore to matters which tended to criminate him. It appears that Mr. Secor was that evening away from home, attending a business men's meeting at the city hall, and had returned home, with his horse and buggy, only a few minutes prior to the explosion. It was his habitual practice to drive to and from the business part of the city when he attended such meetings. He testified that the defendant, somewhere about half–past 9, opened the city hall door, “stuck his nose in the door,” then made a motion with his finger, and Palica went out of the meeting. Secor is positive that the man he saw at the door was the defendant, whom he well knew. A criticism is made upon his testimony because he varied as to the time when he saw this occurrence. He well might make different statements, honestly, as to the time; but as to the fact of seeing defendant he could not well be mistaken. His testimony is corroborated to some extent by the witness Olin, who was present at the meeting, and saw Palica there, and saw him go out of the room. He says, before Palica left the room, he noticed the north doors, which were hung so as to be self–closing. One of them was pushed open, and he saw the form of a man there distinctly, but did not know who it was. A number of witnesses testified to their being on Milwaukee avenue and on State street just after the explosion, which they had heard. It was a clear, moonlight night; and several of them saw a man of medium size, dressed in dark clothes, wearing a soft hat or cap, and having a full beard, pass along south on Milwaukee avenue, and east on State street. Some of the witnesses passed very near this person, and noticed him. The policeman Matson, who was on the northwest corner of State street and Milwaukee avenue when the explosion occurred, says: “I, immediately after the explosion, went up Milwaukee street, on the west side, on the sidewalk. I only met one person while I was going that block. I met him just about in front of the...