Krueger v. State

• Decision Date: 01 June 1920
• Citation: 177 N.W. 917,171 Wis. 566
• Parties: KRUEGER ET AL. v. STATE.
• Court: Wisconsin Supreme Court

171 Wis. 566

177 N.W. 917

KRUEGER ET AL.

v.STATE.

Supreme Court of Wisconsin.

June 1, 1920.

Error to Circuit Court, Clark County; James O'Neill, Judge.

Caroline, Frank, and Leslie Krueger, hereinafter referred to as the defendants, were informed against and tried for the crime of murder of Harry Jensen in the circuit court for Clark county. Caroline was acquitted; Frank and Leslie Krueger were found guilty of murder in the first degree and sentenced to life imprisonment. To review the judgment of conviction the defendants Frank and Leslie Krueger bring error. Affirmed.Kaftan & Reynolds, of Green Bay, for plaintiffs in error.

J. J. Blaine, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Frank Jackson, Dist. Atty., of Colby, for the State.

OWEN, J.

The Krueger family, consisting of Caroline Krueger, the widowed mother, and her sons Frank, Ennis, Louis, and Leslie lived on a farm in Clark county, Wis., about 2 1/2 miles from the village of Owen. The two sons Leslie and Louis were within the draft age and duly registered as required by the United States statutes. Louis Krueger was order to Neilsville for physical examination on February 2, 1918, but failed to appear, and up to September 14, 1918, had not appeared in response to the order. Leslie took his physical examination as required, and on the 5th day of June, 1918, was cited to be at Neilsville on the 24th day of June to entrain for military service. He never appeared. Under the compulsory military service laws of the United States it became the duty of Frank and Ennis to register on the 12th day of September, 1918. They failed to register.

In due course warrants were issued for the arrest of Frank and Ennis Krueger, charging them with failing to register, and placed in the hands of Joseph Gans, deputy United States marshal, for service. On the 14th day of September, 1918, he and C. E. Marks, a special agent of the bureau of investigation of the Department of Justice of the federal government, went to the village of Owen and, in company with Peter Rasmusson, village marshal, proceeded to the Krueger farm in an automobile driven by one Kidd for the purpose of serving said warrants. They went to the house and inquired of Mrs. Krueger where the boys were and were told that they were in the cornfield. They proceeded back along the highway a distance of 60 or 80 rods, and observed Frank and Ennis working in the cornfield a short distance from the highway. They stopped the automobile and Gans, Marks, and Rasmusson got out and went to the fence. Gans called to Frank Krueger, who was about 100 feet from the fence, and said: “Come here. I want to speak to you.” Frank said: “If you want to speak to me speak from right where you are.” Gans said: “I am the United States marshal and have a warrant for you. Come over here; I want to talk with you.” Ennis Krueger then opened fire on the officers and an exchange of numerous shots between the Kruegers and the officers followed. The Kruegers fired seven or eight shots at the officers, one of which cut the coat of Marks on his shoulder. The Kruegers retreated in a zigzag course toward the Krueger house, keeping up the fusilade as they retired. Gans then told Kidd and Rasmusson to go to the village of Owen to get more ammunition and help. Gans and Marks went to the house of one Vater, just across the road from where the shooting occurred, and while they were standing in Vater's yard talking to him bullets whistled in their close proximity, and they saw two men standing in the highway in front of the Krueger house shooting at them with rifles. At least five or six shots were fired at that time. Marks and Gans then went to Withee, called up the United States marshal's office at Eau Claire, informed him of what had happened, and the marshal instructed them to get help and serve the warrants. Shortly, Rasmusson returned from Owen with four or five men, and sent them east across the field north of the house, the idea being for them to reach the woods east of the field and make their way down to the sawmill east of the Krueger residence to prevent the Kruegers' escape in that direction. While going across the field these men were fired upon from the Krueger barn. Of this party one, White, was hit twice, and another, Emil Laneo, was hit nine times. The bullets came from the direction of the Krueger barn. Reinforcements that Gans had secured at Withee then began to arrive on the scene, as well as further volunteers from Owen. These men gathered in the highway south of the Vater house and from 40 to 60 rods north of the Krueger house. They were fired upon from the Krueger premises, and the deceased, Harry Jensen, was there killed, and another man by the name of Page was hit. The posse opened fire on the Krueger premises, and upwards of 150 bullets penetrated the Krueger residence. Mrs. Krueger finally surrendered, and later Frank, seriously wounded, also surrendered. Leslie and Ennis made their escape from the premises that night, but Leslie was later arrested upon the charge of murder of said Harry Jensen. Upon the trial Caroline Krueger was acquitted and Frank and Leslie were convicted of murder in the first degree.

[1] In behalf of Leslie it is contended that there is no evidence warranting his conviction. There is plenty of evidence that he was around the barn or house from which the shooting on the part of the Kruegers took place. There is no direct evidence that he personally did any shooting or that he aided and abetted therein. The evidence in this respect is circumstantial, but in our judgment entirely sufficient to warrant the verdict of the jury.

It is plain that the entire family resented the draft and had no disposition to comply with the compulsory military service act. While Louis and Leslie registered, Louis failed to report for physical examination and Leslie failed to report for entraining. To all intents and purposes, therefore, they were deserters from the army and fugitives from justice. Leslie hung around the Krueger premises after his failure to report for entraining and, in the language of Frank, “stayed in the barn daytimes and bummed around nights.”

Harry Hewett, a witness for the state, testified:

“I talked to Leslie Krueger in the latter part of October or the first part of November, 1918. Leslie Krueger told me he was there on the 14th of September. He said he was up in the barn when the automobile first came there. He said he saw the shooting in the cornfield, and he said that the United States marshals did the first shooting and said he was absolutely sure they did. He did not say that he stayed on the place all day, but he told me about the time he left, just a short time after nightfall after dark set in. He said that he left the place nightfall, just shortly after his brother Frank was taken out of the place by Vater. He said that Ennis and him left together and that he had his revolver in his hands. He said that the fellow he met didn't pay any attention to him and it was a good thing for him he didn't, for if he had he would have been a dead one.”

This evidence was not denied. This plainly reveals Leslie's attitude. He was hostile to the idea of compulsory military service and evidently was resolved not to submit thereto. He left the place at nightfall with his revolver in his hands. “The fellow he met didn't pay any attention to him and it was a good thing for him he didn't for if he had he would have been a dead one.” With this revelation of his character and disposition it is not difficult to believe that he joined with his brothers in fighting off the United States marshals, and but slight evidence of his participation is required to justify a verdict of guilty.

While the evidence is clear that the marshal's posse was met with a fusilade from the Krueger premises, it is said that there is no evidence to connect Leslie therewith. Let us see. Frank Krueger gives a detailed statement of his movements from the time he left the cornfield until he surrendered, and at no time does he locate himself in the barn. He says that he was either in the house or outside of the house, near the windmill and a threshing separator. Numerous witnesses for the state testified that during the affray they saw one man a considerable portion of the time in the yard, around and about the house. It may be assumed, therefore, not only from the testimony of the state's witnesses, but by the admissions of Frank, that he was not in the barn. If, therefore, two men were shooting from the barn, the testimony of Frank shows that he was not one of them. The only other men on the premises were Leslie and Ennis, and if two men were shooting from the barn Leslie must have been one of them.

Frank Giffin was one of the party who crossed the field going from the highway to the woods on the east side of the field. He testified as follows:

“Q. Did you see any persons around the Krueger buildings? A. Not until after we had seen them shoot out of the barn door, the north door towards Vater's.

Q. Who did you see in the barn door? A. I can't tell. I didn't see them myself. I seen the smoke from the guns but I couldn't see the men.

Q. When did you do the shooting? A. After we see them shooting out of the north door of the barn towards Vater's.

Q. How did these shots sound that came from the Krueger premises? A. I heard two shots, two bullets, very distinctly, and one of them made a sharp ‘s-s-s-s,’ and the next one sounded ‘z-z-z-z.’

Q. Could you tell by the sound whether there was more than one rifle being used or not? A. It sounded like a low power gun and a high power gun. That is what it sounded like.”

This justifies the conclusion that two men were shooting from the barn, and if there were two Leslie must have been one of them. Now if, in addition to this testimony, we can find that there were three rifles on the premises, the conclusion is strengthened.

C. J. Good, a witness for the state, testified that he...