McBean v. State

• Decision Date: 25 October 1892
• Citation: 53 N.W. 497,83 Wis. 206
• Parties: MCBEAN v. STATE.
• Court: Wisconsin Supreme Court

83 Wis. 206

53 N.W. 497

MCBEAN

v.STATE.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Error to circuit court, Oneida county; J. K. PARISH, Judge.

Alexander McBean was convicted of an assault with intent to kill, and brings error. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that November 16, 1890, the plaintiff in error, McBean, was temporarily in charge of a saloon in the county of Oneida; that on that night one Felix Taylor and his wife, Mollie, and his brother, Alexander, were stopping at said house, and were considerably under the influence of liquor; that while there the said Mollie got into a controversy with some fellow because he had refused to dance with her; that Felix interfered; that McBean came from behind the bar, for the purpose of stopping them; that Alexander then struck McBean, and knocked him down; that thereupon McBean went behind the bar, and got a double-barrel shotgun, and discharged the contents of one barrel into the floor of the barroom, for the purpose of intimidating the Taylors, and quelling the row; that McBean thereupon reloaded the barrel so discharged; that Felix and McBean then quarreled; that McBean then went into the kitchen, and Felix went upstairs to his wife's room, opened her trunk, and got his revolver from it, and loaded the same, and started to come downstairs; that he met his wife at the head of the stairs; that she, seeing the revolver in his hand, implored him not to go downstairs, saying there would be trouble if he did, and tried to take the revolver from him; that he told her he could shoot as well as anybody; that in her struggle for the revolver it was discharged at the head of the stairs; that about that time one Annie Hickey went downstairs to the kitchen, and told McBean to look out for Felix, that he had a gun; that after the revolver discharged upstairs Felix broke away from his wife, and went downstairs; that soon after his revolver was discharged; that thereupon McBean shot Felix once or twice. Thereupon McBean was charged with an assault upon the said Felix with intent him, the said Felix, to feloniously kill and murder; that he pleaded not guilty to said charge; that at the close of the trial of said cause the jury returned a verdict of guilty; and the said McBean was thereupon sentenced to the state's prison for the term of three years; and from the judgment entered upon such sentence the said McBean brings this writ of error.

Alban & Barnes, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State.

CASSODAY, J., ( after stating the facts.)

This judgment must be reversed for manifest error upon the trial. The theory of the defense is that McBean shot Felix in self-defense. It is undisputed that, after the row in the barroom, McBean went into the kitchen and closed the door; that while there he was informed that Felix was coming downstairs with a gun or revolver; that about the same time he heard Felix's revolver discharged upstairs; that very soon thereafter Felix and his brother, Alexander, came downstairs, when Felix's revolver was again discharged. It was a very important question, upon the subject of such self-defense, whether Felix's revolver was so discharged before or after he was shot by McBean. Upon that question the court, among other things, charged the jury that: “You must remember that the testimony of the state tends to show that the said Felix Taylor did not fire or discharge his revolver before the defendant had shot at him after returning downstairs. There is no question but what the revolver was discharged upstairs in this house, but the evidence of the state is to the effect that his revolver was not discharged but once, or, at least, after he returned upstairs, until after the defendant had shot at him with his gun.” Felix was the complaining witness, and, among other things, testified as follows: “I got shot as I came downstairs. When I got shot I was at the front door in the hall. * * * I * * * went downstairs,--clear down. I went out into the hall. Was near the middle of the hall when I got shot. The hall is three feet wide. * * * The way it was, my brother followed me down and grabbed the revolver, and took it away, and it went off in some way. I don't remember whether in my hands or his. Was shot before I moved, after my revolver went off. I think my brother took the revolver from me after the shot was fired. Do not remember whether it was after or before. The second shot from the revolver went off at the foot of the stairs, and my brother was trying to take the revolver away from me at the time. The shot from the revolver...