Montgomery v. State

• Decision Date: 10 October 1922
• Parties: MONTGOMERY v. STATE.
• Court: Wisconsin Supreme Court

178 Wis. 461

190 N.W. 105

MONTGOMERY

v.STATE.

Supreme Court of Wisconsin.

Oct. 10, 1922.

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

Judson Montgomery was convicted of murder in the second degree, and he brings error. Affirmed.

The plaintiff in error, hereinafter called the defendant, is charged with having “on the 19th day of March, 1919, unlawfully, willfully and feloniously killed and murdered Lillian Blanchard by an act then and there imminently dangerous to others and evincing a depraved mind, regardless of human life, but without any premeditated design to effect the death of the person, Lillian Blanchard, or any other human being.”

The material facts in the case are without substantial dispute. On March 19, 1919, at about 7:30 o'clock p. m., the defendant with four companions left the Hotel Wisconsin, which is situated between Grand avenue and Wells street on Third street, in the city of Milwaukee, in a Hudson Super-Six automobile, which was driven by the defendant, and went to a resort on the Blue Mound Road. On the afternoon of the same day, the defendant had drunk two whisky sours, and at about 6 o'clock p. m. he had drunk two Cascade whiskies. The defendant drove rather fast, and on two occasions one of his companions remonstrated with him for fast driving. At the resort, the defendant had a glass of whisky. A chicken dinner was then served, and during the meal the defendant drank another whisky. After dinner, the defendant visited three other resorts and in each had a drink of whisky. At about 9 o'clock p. m., the party entered the automobile for the purpose of returning to the city. One of his companions suggested to the defendant that the defendant permit him to drive the car, but the defendant refused. The automobile was driven very rapidly toward the city on Grand avenue and at Twenty-Seventh street turned off of Grand avenue onto Wells street and proceeded rapidly eastward at a rate of from 30 to 35 miles per hour, although the speed was estimated by some witnesses as high as 45 to 50 miles an hour. On Wells street there is a double-track street car line, upon which a street car was proceeding in an easterly direction on the southerly set of tracks.

Mrs. Blanchard, the deceased, had accompanied some guests to the corner of Thirteenth and Wells streets, where her guests were to take the street car. When she and her guests saw the street car approaching from Fourteenth street, they stepped out into the street in order to board the car. As they were standing in the street and at a time after the street car had stopped, the automobile operated by the defendant, still proceeding at a high rate of speed, crossed over from the northerly to the southerly side of Wells street, proceeded without any slackening of speed, struck Mrs. Blanchard, killing her. Two other persons were killed and two other persons injured. As the automobile approached the spot where the injury occurred, no horn was sounded or signal given of its approach. The night was clear, the pavement was dry, and a large electric arc light was on the corner. The people standing in the street awaiting the approach of the car were plainly visible for some distance away and were seen by some of the occupants of the automobile, who protested to the defendant and warned him that he would kill the people in the street. The right fender of the automobile was bent, the radiator was caved in, the bumper was broken off, and the headlight was bent back.

After the collision, the defendant drove the automobile back to the garage located between Eleventh and Twelfth streets. He went in the garage and told the night man to bring the car in, stating: “I hit some one, Ed. Will you please take the car in?” The defendant then walked down to the Hotel Wisconsin, some eight or nine blocks distant, where he asked to have an attorney called, and upon the advice of friends went to the police station, and when he was asked why he did not go back and pick up the people, he replied, “I must have been drunk or crazy.” In a statement to the police the next morning, the defendant stated that his headlights were lit; that “it seemed as if these people came right out, cold turkey, in front of the automobile, right out of the darkness, that's all, bango;” that he was about 15 or 25 feet from the street car when he first saw the people in the street; that he realized what happened and came to the police station.

Upon these facts and upon full and proper instructions given by the court, the jury found the defendant guilty of murder in the second degree, and he was sentenced to the state prison for 14 years, the minimum sentence. To review the record, the defendant brings this writ of error.Stover & Stover, of Milwaukee, for plaintiff in error.

William J. Morgan, Atty. Gen., and W. C. Zabel, Dist. Atty., and Geo. A. Shaughnessy, Asst. Dist. Atty., both of Milwaukee, for the State.

ROSENBERRY, J. (after stating the facts as above).

No errors are formally assigned in the brief filed on behalf of the defendant, but from the argument we deduce the following assignments: First, that the court erred in rejecting testimony offered by the defendant to show that the...