Lang v. State

• Decision Date: 08 July 1922
• Citation: 189 N.W. 558,178 Wis. 114
• Parties: LANG v. STATE.
• Court: Wisconsin Supreme Court

178 Wis. 114

189 N.W. 558

LANG

v.STATE.

Supreme Court of Wisconsin.

July 8, 1922.

Error to Circuit Court, Kenosha County; E. B. Belden, Judge.

Frank Lang was convicted of murder in the second degree, and he brings error. Reversed and remanded.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the second degree and sentenced to 20 years in the state penitentiary at Waupun. His conviction rested upon alleged confessions made while in the custody of the police, which he repudiated before trial.

Charles Pacini, the murdered man, conducted the Majestic Theater on Main street in the city of Kenosha. Shortly after 11 o'clock on the night of August 14, 1920, he left the theater and drove to a garage on Park street, about two blocks distant, where he customarily kept his car.

About 11:15 Sam Russo, who lived on Exchange street in the immediate vicinity of the garage, heard a scream followed by a shot and then three shots in succession. He ran towards the garage, and when he approached the corner he saw Pacini running towards Main street, holding his side and crying. “I am shot.”

Paul Miller was walking along Main street at the corner of Park. He heard the shooting, ran towards the garage, met Pacini, and walked with him to his theater. Arriving there, Pacini asked Miller to go back to the garage and find his keys. Miller found the keys in the door, and also found near by an open pocketknife.

Before he returned, Pacini had been found sitting on the steps of the theater by Charles Rock, a policeman, who called an ambulance. As he was being helped into the ambulance Pacini was heard to remark that “he knew who shot him and he would get him.” He died the next day without having disclosed the identity of his assailant.

Pacini carried a .38–caliber Colt automatic pistol. Three shells had been exploded. There were found in the garage three empty shells corresponding to those used by Pacini.

On the night of September 27th Frank Lang was taken into custody at his home as a suspect in connection with the robbery of the Cozy saloon on the preceding night. After extended questioning, he confessed to this robbery, and also to the robbery of 36 other places of business, one of which was a jewelry store. About 4:30 in the morning he signed a statement to the effect that he had shot Pacini in an attempt to rob him.

On the following day he was taken to Chicago. He pointed out one of the proprietors of a pawnshop as the man to whom he had sold jewelry secured in one of the robberies. In another pawnshop it was found that about two years before he had bought a revolver. This revolver had been taken from him by the police during the preceding year.

The following morning he was taken to municipal court, where he waived preliminary examination. He was then taken to the circuit court, when, just as a plea of guilty was being entered, an attorney appeared at the request of defendant's wife. A conference was held with the court and district attorney. Defendant denied his guilt. The plea of guilty was set aside, and a plea of not guilty entered.

At the trial the state offered in evidence the following alleged confession:

“I, Frank Lang, being first duly sworn on oath, depose and say that I live at 175 English court, in the city of Kenosha, Wis., and am 45 years of age; that on the 14th day of August, 1920, at said city of Kenosha, Wis., I shot Charles Pacini. I went to hold up Charley Pacini and then I shot him and ran home. I had the gun at Pacini's show that night and waited until the show was closed up, and then I sat on the curb of Exchange and Park street waiting for him; and then when he was coming out of the door I told him to hold up his hands, and when I told him that he immediately reached in his pocket to get his revolver, and then I shot him. I had a .38–revolver. I bought the gun on Halstead street in Chicago. I think it was an Iver–Johnson gun. I then threw the gun away, and threw it in the weeds. When I shot him I ran down Exchange street. My idea was to hold him up, as I thought he carried the money with him. I was sitting on Exchange street when he drove away from the theater. I was all alone. I bought the gun in Chicago about five weeks before that. I wanted to have it for the house. I paid $6.50. I can show where the gun was purchased on Halstead street, near Van Buren street. I never said anything to any one that I shot him. I went home and stayed home until Sunday afternoon; and Monday morning I went to work as usual. I knew Charley died Sunday night. I was anxious to find out how Charley was getting along. The first man that came into the garage there that night was a young man by the name of Russo. Then I ran in back of the garage. I never tried to hold him up before. I don't think Pacini knew me. He was coming out of the light, and I was in the dark. He didn't speak to me. He just reached for his gun, and I shot him. I shot once, is all I can remember. I might have pulled it again. I shot first, and then he fell down, and then he got up and started to fire and hollered for help.

I make this statement of my own free will, and with no promise of immunity.”

The above statement was signed by the defendant and was sworn to before the clerk of the municipal court.

Defendant's counsel objected to the admission of the confession on the ground that it had been secured by duress. As to the making of the confession defendant testified, in substance, that on the night of September 27th he had gone to bed about 8:30; that the officers came and took him about 11 o'clock; that, after being questioned about the robbing of a pool hall known as Tony's Place, he was confined in a cell downstairs; that soon he was brought upstairs and the questioning continued; that he denied robbing the place; that the officers then began beating him with parade clubs about the shoulders and arms, and that in order to escape the punishment he said he had robbed the place, and that he had the money at home.

It appears that the officers made several trips to defendant's home in search of money, and that the wife finally gave them about $250, and that Lang was taken to the house to assist in a search for more.

Concerning the action of the officers after they had returned from a fruitless search for money, defendant testified:

“Then they told me they couldn't find it, and hit me some more. They were mad about it. They hit me quite a few times on the arms and back. They kept striking me, and then they wanted me to confess more robberies, and so, to avoid further punishment, I kept on saying it. I was telling everything that came into my head. I did it to avoid further punishment. I didn't want to be beaten any more. * * * They showed the money to me, then they put the money away and started wanting me to confess more things. They started beating me, and then I kept on mentioning other business people. * * *”

Concerning the making of the confession in question, defendant testified:

“Wade and Bienemann and this here ‘17’ started asking me if I killed Charley Pacini. * * * I told him, ‘No; I didn't do it.’ Three of them started pounding me. I says, ‘No; I didn't do it, so help me God; I didn't do anything like that at all; I didn't do no wrong.’ They kept it up quite a while, and at last Bienemann made me get up against the wall again, and they pounded me and told me to say I did it. Wade and this here ‘17’ and Bienemann pounded me. Bienemann told me to say I did it. Wade and No. 17 were both there and insisted on my saying I did it. I finally said I did after I had been beaten. I was very weak and nervous and all in. * * * I was given some moonshine whisky by Cyzak at that time. I was fainting; I was weak. I had two drinks, and after the confession was made he said I might as well finish the bottle. They had me up against the wall, tight up against the wall. Then Bienemann says, ‘I will make him talk,’ and he kept on pounding, hitting me as hard as he could on my back and kidneys. He says, ‘Now, you ______, say you killed Charley Pacini or I will kill you.’ At last I says, ‘Yes; I done it,’ to stop the punishment. I had read of the murder of Pacini in the papers and had heard it discussed about town. I have no knowledge of this murder or any of the details except what I read from the newspaper.”

Dr. J. F. Hastings testified as follows in part:

“On the 29th day of September, in company with Drs. Jorgenson and Adams, I examined the defendant, Frank Lang, at the county jail. He was stripped and an examination made of his physical condition. There were marks on the right arm; also marks on the left side––left back––extending from the shoulder down to the edge of the ribs. This extended around on the side to a line that might be drawn from the interior portion of the axilla. The left arm was also bruised, black and blue to the elbow; and there was a discoloration, greenish yellow, from the elbow down towards the wrist. The left arm was swollen, also the forearm. The tissues of the back were somewhat swollen. There were also bruises on the buttocks, as I remember, especially on the right. I should judge that the injuries observed by us were caused by violence of some kind which extended into the tissues and muscles, breaking the blood vessels under the skin, so that it caused discoloration, and also breaking the skin in spots. We took an X–ray to determine whether or not the left arm was fractured.”

Dr. Adams testified in part:

“I can say that these injuries were caused by violence of some kind. It must have been quite severe violence, because the discoloration was very dark and very deep. * * * Lang must have suffered extremely. The condition of his arm alone was such that he must have suffered very much from the injury to it; and the bruised condition of his back, his right arm, and the buttocks, the degree of the bruise there must have been brought about by severe hurt.”

There was testimony to the effect that...