Montgomery v. State

• Decision Date: 05 June 1908
• Citation: 116 N.W. 876,136 Wis. 119
• Parties: MONTGOMERY v. STATE.
• Court: Wisconsin Supreme Court

136 Wis. 119

116 N.W. 876

MONTGOMERY

v.STATE.

Supreme Court of Wisconsin.

June 5, 1908.

Error to Circuit Court, Jackson County; James O'Neil, Judge.

Samuel T. Montgomery was convicted of manslaughter in the second degree, and he brings error. Affirmed.

The plaintiff in error, who will be hereinafter referred to as the defendant, was from 1900 to 1903 a farmer, living about seven miles east of the village of Warrens, in Monroe county. He was 41 years old at the time of his wife's death, May 30, 1903. He had been a widower for some years prior to his marriage to the deceased in 1900, living on a small farm with his children. The deceased's maiden name was Blanche Howard. Prior to her marriage the deceased had taught school in the district where he lived and elsewhere, and thereafter continued her vocation for a considerable part of the time. She was about 25 years old at the time of her marriage. Her weight was 130 pounds. Defendant weighed over 200 pounds, was rather high tempered, and years before he had been convicted of personal assault upon another, and was somewhat addicted to the use of intoxicating liquor. The deceased taught school at Stowell, some distance from her home, in Monroe county, in April and May, 1903, and during that time visited her husband every two weeks, and he visited her about as often, and letters were written by each to the other, at least three by the deceased and two by the defendant. On May 29, 1903, defendant drove with his team and buggy to Warrens and took the train to Stowell, and spent the night with his wife at Mr. Belcher's where she was boarding. During the night Mr. and Mrs. Belcher heard angry talk and crying in the bedroom occupied by the defendant and the deceased, and the next morning she showed plainly that she had been weeping. The defendant and his wife took the morning train for Warrens, where they spent the day attending the exercises of Decoration Day. They both drank beer and whisky with their friends, but neither became intoxicated, and near 6 o'clock in the afternoon started for home. The team, one rather a slow horse and a colt, were hitched to a single-seated, side-spring, road wagon, with a high back seat. The right-hand spring being weak, the deceased rode on that side. They both then appeared to be in usual health and spirits, and to feel friendly towards each other. The defendant states that soon after leaving town the deceased complained of feeling faint, and asked for the whisky bottle; that he had a pint flask, one-third to one-half full, from which she then drank, and from which she later took another drink, and that he drank what was left and threw the bottle away; that a few minutes thereafter she caught him about the neck, saying she had been wicked, and told him about her improper relations with a man at Stowell. Defendant says that he did not believe her statements but he took an envelope out of his pocket which contained a confession which she had previously made of other similar conduct, and threatened to send it to her father if she did not stop telling lies, quit teaching school, and stay at home where she ought to be; that she asked him to destroy the paper, but he refused; that she then tried to grab it, and when she could not she clutched right into his face; that he caught hold of her and held her until she stopped struggling; that after going about 10 rods, as the horses were walking, she got out of the buggy, and that he got out and helped her in; that she acted kind of dazed, and he thought she had taken too large a drink of whisky; that he was not angry when his wife made the confession of wrongdoing; that similar confessions were made at times when they were at home, and had been overheard by his daughter Nina.

Defendant states that after his wife returned to the buggy she looked faint, and he put his arm round her, and she leaned up against him, and they drove along in that way for nearly two miles; that then she sat up, and he took the whip to start the horses, and as he returned the whip to the socket she pitched forward, and he thought her face struck the “ex” of the buggy near the hub; that she fell onto the ground, and that the buggy ran over her; that he stopped the team as quick as he could, jumped out, and went back and picked her up; that then she had bruises on her nose and lips; that when he led her back to the buggy she commenced to turn round, tried to get away, and “hollered,” frightening the team so that he had to run and catch them, and tie them to a telephone post; that his wife started back towards Warrens, and that as soon as he got the horses tied he ran and caught her and brought her back to the buggy; that he started to untie the horses, and his wife started towards Warrens, and he had to go after her; that when he caught her she pulled away from him and threw herself on the ground; that he helped her up, talked with her a few minutes, and then got her back into the buggy again. He was here seen by an acquaintance, Roy Lamb, who was 10 or 15 rods distant to the west, approaching on the same road. Defendant says he untied his team, got into the buggy, and put his arm around his wife, and started the team for home at a fast pace, one horse was running and the other trotting; that he knew there was something wrong; and that his wife had hurt herself, and he thought the best thing to do was to get her home. It may here be noted that Mr. Lamb was accompanied by his sister, and they might have given assistance if any was needed, but the defendant did not wait their approach. They turned off upon another road a short distance from this point. Defendant states that after the deceased got into the buggy at this time she sat leaning towards him, with her head against him on the right side, and that he had his arm round her waist; that they proceeded in this manner until within about three-quarters of a mile from home, near the Green's residence, when she raised up and said that she felt all right; that he reached for the whip with his right hand to start up the team, and as he did so his wife fell out of the buggy between the wheels; that he grabbed for her with his right hand: that his hold broke loose, and he then grabbed her by the leg; that he hung to her for a moment, and that she finally fell onto the ground; that she was dragged some distance by reason of his holding to her and the horses running; that he stopped the horses as soon as he could, ran and got his wife, carried her in his arms, and lifted her into the buggy on the left-hand side, holding his wife with her face on his breast. The defendant was here seen by Pearl Green and her brother Tom Green. Defendant did not stop at this house for assistance, but drove rapidly by to his own home. Tom Green went to the spot where the deceased fell out of the buggy the last time, and found that the body had been dragged some 53 paces along the highway, while, as the defendant says, he was holding onto her leg. Defendant says he drove fast until he reached home, and that his wife was unconscious during that time; that when he got home his daughter Nina came out, and they helped the deceased out of the buggy and into the house; that Nina said she could not wash her mother, and that she took care of the team while he bathed his wife's face; that he found one eye was swelled shut and her face was badly bruised; that he laid her on the bed and went to the telephone and called Dr. Sidell at Warrens; that his wife roused up, and after Nina came in she called her by name and wanted to be helped off the bed and out of the bedroom to the waterpail; that the deceased stood on her feet without help; that they gave her a drink of water, and she sat down in the chair and asked Nina if she was home, and spoke of a little colt which she wanted to see; that defendant told Nina to go and drive the colt from the pasture; that Nina started out, and had gone a short distance when she heard the deceased call her name three times. Defendant and Nina both say that he followed her out of the door out of sight of the deceased, and that Nina followed her father inside, although he entered the house a trifle in advance of her. Nina says that the deceased was seated in a chair, unconscious, with her head leaning back against the wall, and that the defendant then said: “My God, Nina, I believe Blanche is dead.” Defendant testified that when he entered the room in adadvance of Nina his wife was upon the floor, and that he lifted her up and placed her in a chair. Defendant and his daughter carried the deceased out in the front yard, where she could get fresh air, and where she immediately thereafter expired, according to their testimony.

The facts are fully stated in the report of this case upon the first appeal (128 Wis. 183, 107 N. W. 14) and this brief summary is given of the statements of the defendant for a better understanding of the issues here presented. This court held that the evidence given upon the first trial was not sufficient to sustain a conviction of murder in the first degree, and that the trial court erred in not submitting to the jury the question as to whether the killing was not done in the heat of passion, so as to reduce the crime to manslaughter in the second or fourth degree. The action was remanded for a new trial, and defendant was tried on the same information and on substantially the same evidence and convicted of manslaughter in the second degree. The action was brought to trial in Jackson county after a change of venue, and a motion was then made on behalf of the defendant that the indictment be quashed for the reason that the record showed the acquittal of the defendant of every crime included in the present information. The same question was presented by a plea in bar, and also by a plea in abatement, based on the record of the former trial. A demurrer to these pleas was sustained. At the close of the trial the defendant moved for a...