Miller v. State

CourtUnited States State Supreme Court of Wisconsin
Writing for the Court<I>Syllabus by the Judge.</I>
Citation139 Wis. 57,119 N.W. 850
Decision Date16 February 1909
Syllabus by the Judge.

An application for a continuance under circuit court rule 19 (108 N. W. xiv) may be resisted by counter affidavits as to facts other than the materiality of evidence referred to in the moving affidavit, whether the absent witness will furnish the evidence as claimed and whether, if he does, it will be truthful.

Such an application is addressed to the sound discretion of the court, but it satisfactorily appearing that the desired testimony is material to the moving party's case and that all the essentials of circuit court rule 19 (108 N. W. xiv) are satisfied even in the light of counter affidavits, in the legitimate field for such proofs--to deny it would be an abuse of discretion.

The decision of a trial court on an application for a continuance, within the field of discretion, is conclusive.

In case of an application on the part of an accused, for a continuance in a criminal case, the situation being such that it is within the field of discretion whether to grant or deny the same, the court may take the latter course, conditioned upon the prosecution admitting upon the record that the absent witness would, if produced, testify as claimed, the same to be considered by the jury as if testified to by the witness upon the trial.

If upon a criminal trial the accused makes such an application for a continuance on the ground of the absence of a witness, which is not within discretion to deny, it is error to do so on condition that such a concession be made as indicated in the last foregoing paragraph, but it may be done upon condition of the prosecution admitting the truth of the testimony which it is claimed the absent witness would give if present.

A trial judge may exercise his own discretion as to the mere language used in expounding principles of law, but where there exists a phrasing of an important rule approved by this court, the better administration is to follow it.

Neither the statutes nor the unwritten law prevents a trial judge from incorporating all approved requests to instruct in the general charge, so as to cover every phase of the case properly requested by counsel to be given, without repetition and in logical order.

The rule as to the legal presumption of innocence, excludes the idea that a mere criminal charge is evidence of guilt, rendering instruction as to the latter unnecessary, if such rule is plainly given.

The common-law rule as to duty of one attacked to “retreat to the wall” or so far as he can, or so far that to go further would rather increase than decrease the danger,--the “flight rule,”--is no longer the law.

If a person is attacked by another, without that other's fault, and such person has reasonable ground to apprehend he is in imminent danger of losing his life or receiving some bodily injury at the hands of such other, he is justified in acting upon such reasonable apprehension, regardless of the real facts, doing whatever to him at the time seems reasonably necessary for his efficient protection, even to taking the life of his adversary.

In a prosecution for an alleged criminal homicide, a wrong instruction on the subject of self-defense, does not constitute error, harmful to the accused, if in no reasonable view of the evidence could the claimed right to slay in self-defense, be sustained.

Refusals to instruct on the subject of reasonable doubt, whether of an explanatory nature or not, do not constitute error, if the subject is covered by a proper statement of the rule in the general charge.

It is proper to instruct a jury that, if they believe from the evidence beyond a reasonable doubt that the accused is guilty of some offense of criminal homicide within the charge made against him but entertain a reasonable doubt as between a lower and higher degree, they should convict of the lower, rather than of the higher, if satisfied beyond a reasonable doubt from the evidence that he is guilty at least of such lower.

Where an instruction is so involved that it did not, in any reasonable probability, impress the minds of the jury with any idea in the case one way or the other, it may be regarded as harmless error.

If a witness testifies willfully falsely as to any material matter in the trial of a case, the jury may, if it sees fit, but is not bound to, reject all of such witness' evidence, not corroborated by some other credible evidence.

If one has a doubt which would cause an ordinarily prudent man to pause and hesitate to act, in the most important affairs of life, he has a “reasonable doubt” within the meaning of that term, as used in the law.

Guilt is proven beyond a reasonable doubt when all the evidence in the case, clearly, impartially and reasonably considered, is sufficient to impress the judgment of ordinary reasonable and prudent men with a conviction upon which they would act, without hesitation, in the most important affairs of life.

If a person is assaulted on another's premises by the latter and a serious affray results, terminating in the party assaulted leaving such premises, being commanded to do so and not to return, such occurrence does not militate against such other's right of self-defense, in case of such person returning and, without justification by the conduct of such other, creating in the mind of such other reasonable apprehension of being presently killed or receiving some serious bodily injury.

In case of the commission of an offense by two or more persons concerting together to that end by prearrangement, a declaration of one after the fact of an incriminating character, is not admissible as evidence against the other, or others, but such a declaration after the formed, and before the consummation of the, purpose, may be so received.

If on the trial of a criminal action it is claimed the offense was committed in consummation of a conspiracy, an incriminating declaration of one member of the conspiracy, is not admissible against the other, unless evidence is produced sufficient, in the judgment of the court, to warrant the jury in finding the existence of the conspiracy beyond a reasonable doubt.

Where the common design to commit a criminal offense is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others.

A suggestion in the charge to a jury in a criminal case of the existence of a phase of the case prejudicial to the accused, which is not warranted by the evidence, is harmful error.

Where two persons are charged with being guilty of having committed an offense of criminal homicide of the first magnitude, and the claim of the prosecution is that they acted to that end and pursuant to agreement, and there is evidence tending to establish that situation, yet there is room in the evidence for believing, reasonably, that one of the parties did not participate in the design to kill or in anything more than to punish the guilt of the other of the highest offense does not require that one to be so convicted or acquitted.

Where upon review of the conviction of a person for a criminal offense, it appears that there was no evidence, in any reasonable view of it, warranting the belief of guilt to a moral certainty, and there was a motion to discharge on that ground, the judgment should be reversed and the cause remanded with directions to grant the motion.

The common-law motion in arrest of judgment in a criminal case, with the ancient practice and technicalities in respect thereto, does not exist under the Code. That as to practice covers the subject of criminal as well as of civil trials.

A motion, after conviction, to discharge for any ground good at common law in support of a motion in arrest of judgment, or to stay the entry of the judgment for any legitimate cause, may be called a motion in arrest of judgment, but it does not, necessarily, waive the right to move for a new trial, and in case of both motions being made, the order thereof or the deciding of the same is immaterial, so long as the decision on the motion for a new trial precedes the entry of judgment.

Error to Circuit Court, Taylor County; J. K. Parish, Judge.

Belle Miller and Stephen Bromley were convicted of murder, and bring error. Affirmed as to Stephen Bromley, and reversed as to Belle Miller.

The plaintiffs in error were, in due form, charged with the offense of murder in the first degree, in that they, on the 18th day of March, 1906, at the town of McKinley in Taylor county, this state, feloniously assaulted Thomas McGowan with premeditated design to take his life and by such assault effected such design. Such proceedings were in due form had that they were found guilty by the verdict of a jury, and subsequently were in form sentenced as the law seemed to require. The facts as aforesaid are stated in the opinion.

John B. Hagarty (W. H. Stafford, of counsel), for plaintiffs in error.

F. L. Gilbert, Atty. Gen., and A. C. Titus, Asst. Atty. Gen. (R. Sleight, of counsel), for the State.


These matters were undisputed upon the evidence, or substantially so: In the evening of March 18, 1906, Thomas McGowan, accompanied by several other persons, laborers in a logging camp, in the vicinity of the home of the plaintiff in error Stephen Bromley, for whom plaintiff in error Belle Miller was housekeeper,--visited Bromley's house. Bromley in addition to working at times in the woods conducted a small farm, and kept liquor, cigars and tobacco for sale. He knew of McGowan and regarded him as an undesirable fellow to have at his place. Belle Miller had seen him on another occasion when he visited the house and ill treated her. She was a person of some considerable intelligence, but a woman of low degree; of questionable character, at least. Bromley had heard that McGowan purposed coming to his place to clean out his house and do him...

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    ...does not create the danger by his own wrongful conduct, he may stand his ground, if assailed by another ....961 N.W.2d 38 Miller v. State, 139 Wis. 57, 75, 119 N.W. 850 (1909) (emphasis added); see also State v. Watkins, 2002 WI 101, ¶¶91-94, 255 Wis. 2d 265, 647 N.W.2d 244 (explaining that......
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    • 5 Enero 1916 violation of any constitutional right of process to compel attendance of witnesses. In the recent Wisconsin case of Miller v. State, 139 Wis. 57, 119 N.W. 850, many decisions are cited and discussed, in all phases here involved, including constitutional right to process. Mr. Justice Mars......
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