Johnson v. State

Decision Date21 June 1906
Citation129 Wis. 146,108 N.W. 55
CourtWisconsin Supreme Court

Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.

John S. Johnson was convicted of murder, and brings error. Reversed and remanded.

Writ of error from the municipal court of Milwaukee county to review a conviction of John S. Johnson of the crime of murder in the second degree.

The accused was charged with the highest degree of criminal homicide. He was in due form found guilty by the jury as indicated in the opening paragraph and was thereupon sentenced to be punished by confinement at hard labor in the state prison at Waupun, Wisconsin, for the period of fourteen years, suitable provision according to law being made for solitary confinement. He was committed accordingly and was at the time of suing out the writ, and still is, serving his time. The facts of the case and the points suggested for consideration upon the review will be reserved for the opinion.W. E. & F. P. Burke and John M. Clarke, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for the State.

MARSHALL, J. (after stating the facts).

On the 10th day of August, 1904, the accused resided at a boarding house in the city of Milwaukee in which there was a saloon. He owned a revolver to the knowledge of the keeper of the house. He procured it some time prior to his residence in Milwaukee and while he was temporarily staying in Chicago, and carried the same in the latter place by permission of the police because, as he claimed, he had been threatened with and feared personal violence by members of a labor organization who conceived his business methods to be antagonistic to their interests. His residence in Milwaukee was of a temporary character and for the purpose of introducing there a patented device of which he was the inventor. He had been there about one month when the event causing his conviction occurred. About ten o'clock on the evening of August 10th aforesaid he and others were in the saloon part of the boarding house engaged in the pastime of drinking, deciding in advance by shaking dice who should pay the bills. He was substantially a stranger to his associates. He claimed later that he supposed they were members of the class by whom he had been threatened in Chicago. After several rounds of shaking dice and drinking, Patrick Doyle and the accused being contestants on several of the occasions, they shook again and got into an altercation as to the result, ending with passing the lie between them and the accused leaving the room hurriedly and in anger. There was evidence tending to prove this. When the accused so left the room he used expressions indicating a purpose to return better prepared for attack or defense and to vindicate his position by force. He was heard to go rapidly through the dining room, into the hall leading to the stairs, along such hall to and up the stairs, then down the upper hall to his room and to immediately retrace his steps to the saloon. During the short time of his absence one of the saloon attendants who knew of his having the revolver, requested Doyle to leave the place so as to avoid the threatened trouble, which he declined to do. As the accused re-entered the saloon room Doyle started towards him with his left hand raised in an attitude and manner suggesting intention to explain. Johnson immediately reached for his revolver which was in his pocket. Seeing the movement and the weapon drawn and raised Doyle moved quickly forward toward Johnson, endeavoring to lay hold of him so as to prevent his using the weapon. Shooting immediately commenced. Several shots were fired during a short interval of time during which, except possibly at the instant of the first shot, the parties were hold of each other and down or partially down on the floor. At last two shots were fired in rapid succession, when Doyle made some expression indicating a wish to cease the struggle, when the two separated. In a few moments Doyle was dead. As soon as the separation occurred a call for a doctor for the wounded man was suggested, and thereupon the accused volunteered to do that, which he did, being under such excitement that it was with some difficulty he made himself understood by the one called. Shortly after such calling, the accused went to his room. A few moments thereafter he left the place by the side door, for the purpose of going to the police station and giving himself up. He walked the distance of some five blocks and then boarded a street car. Soon thereafter he made statements to the motorman as to what had occurred and the circumstances thereof and said that he wanted to ride to the police station. He claimed on the trial that he procured his revolver merely to protect himself from supposed impending danger; that his purpose in returning to the saloon room was to treat the crowd and settle the existing difficulty that way; that before there was opportunity for him to carry out such purpose he was attacked by Doyle; that he fired the first shot through the window, being careful to see that no one was in the path of the bullet, and for the purpose of scaring Doyle; that the latter as he rushed toward the accused attempted to strike him with a beer bottle; that the deceased choked the accused, grasping him from behind, at the same time endeavoring to get hold of the revolver and turn it against the body of the accused and discharge it; that the latter succeeded in working the weapon up over his shoulder and toward Doyle and then fired; that Doyle continued to choke the accused so he could not speak, in the meantime getting upon his shoulders, the accused being upon his knees, when he fired two shots backward; that Doyle then signified enough and the separation occurred; that the reason the accused armed himself and used his weapon was that he believed his life was in danger. There was evidence tending, strongly, to indicate that he had no reasonable ground to fear Doyle; that he was the real aggressor; that Doyle was wholly unarmed; that he did not strike the accused with a beer bottle or attempt to do so or to strike him in any other manner; that all he did was to make unsuccessful efforts to prevent the accused from successfully using the weapon.

The foregoing sufficiently indicates the circumstances of this case as the jury had the right to view them. We have not attempted to give the evidence in any considerable detail. It will suffice for the proper consideration of the questions presented, to show, as we have, what the evidence tended to prove and that such tendency, notwithstanding evidence to the contrary, was sufficiently probative to justify the jury, reasonably, in believing beyond a reasonable doubt that such tendency pointed to the truth.

The first point made on behalf of plaintiff in error is that there was no evidence warranting a conviction of the accused of murder in the second degree. The idea advanced is that though the homicide was accomplished by an act imminently dangerous to others, it was not one evincing a depraved mind regardless of human life, and so did not satisfy all elements suggested by the language: “Such killing, when perpetrated by an 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.” Section 4339, Rev. St. 1898.

There does not appear to be any merit in that contention. The mere passing of the lie under the circumstances of the case might well have been considered by the jury an inadequate provocation for such passion as to satisfy any of the degrees of manslaughter required to be characterized by heat of passion. They may well have considered that for a person to angrily dispute over such a trifling matter as who should pay a paltry sum for the drinks, his adversary apparently not being much, if any, his superior in strength and ability to defend himself by ordinary means, and upon being called a liar to rush off to his room, return armed with a revolver, bent on using it to secure an apology or revenge, to draw it and while his adversary was merely trying to prevent it from being successfully used, to discharge it four times, sending three bullets into the body of his victim with fatal effect, very clearly evinced a depraved mind, regardless of human life. The jury having found the accused guilty of an offense higher than manslaughter, must have viewed the evidence quite charitably in finding a verdict of murder in the second degree instead of murder in the first degree. They were, it seems, well warranted in believing that the shots that took effect were fired during the struggle when the two men were down, or substantially so, on the floor; that though the weapon was, when discharged, pointed at a vital part of Doyle's body, the position of the accused was such that he may not have been conscious of that precise fact and may have fired thinking thereby more of disabling Doyle, yet regardless of consequences, than of taking human life. In other words, that he had no specifically formed design to take such life, but worked the weapon as he did moved by a depraved mind, regardless of human life, within the meaning of the statute. The case seems to present more clearly the essentials of murder in the second degree than did Odette v. The State, 90 Wis. 258, 62 N. W. 1054, or Flynn v. The State, 97 Wis. 44, 72 N. W. 373. As said in effect in the latter case, the evidence was open, reasonably, to the view that the act of the accused was that of an angry man, without adequate provocation to suggest, reasonably, manslaughter in the third degree evincing a depraved mind, regardless of human life, without the formed design to take human life essential to murder in the first degree.

Error is assigned because testimony was rejected as regards what the accused said...

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