Ohms v. State
| Decision Date | 11 May 1880 |
| Citation | 5 N.W. 827,49 Wis. 415 |
| Parties | OHMS v. THE STATE |
| Court | Wisconsin Supreme Court |
Argued April 27, 1880
ERROR to the Circuit Court for Green County.
The case is stated in the opinion.
Judgment reversed and cause remanded for new trial.
B Dunwiddie, for plaintiff in error.
The Attorney General, for the state.
The plaintiff in error was tried and convicted of the murder of his father. The evidence shows that the father of the accused was killed on the 19th of June, 1878, near his house in Green county, between the hours of ten and eleven o'clock in the evening of said day; that the death was occasioned by pistol shots; and that none of the family of the deceased were at home at the time he was killed. His wife and daughter, the only persons composing his family, were absent at a prayer meeting at the time. Several persons heard shots fired, which were probably the ones which caused his death. The deceased was found near the barn, in a potato field lying on his face, dead. A club was found near him, with some blood on it, and one of the horses of the deceased, which he kept in the stable, was found outside of the stable, with a bridle on.
The evidence tending to establish the guilt of the son is, in substance, that he was about twenty-two years old at the time of the trial; that he was sickly and had been for several years; that something more than two years before the death of the father, he and his son had difficulty, and the father had refused to furnish any more money for medical attendance upon the son, and the son left and worked for his board with a man living near Janesville for about a year; that he then returned to his father and lived with him again for about a year, and until in May, 1878, when, the father again refusing him money to get medical attendance, he again left and went to Janesville, where he remained, doing no work and sleeping most of the time in a livery barn, and, as he claimed, getting some medical attendance. After he left home, in 1878, he corresponded with his sister, who was living with their father, and this correspondence was put in evidence by the state. The evidence tends to show that the father was a hard and unfeeling man, and that his son Frederick, when he left him in 1876, entertained no friendly feelings towards him.
The state, to show the feeling of the son towards his father, introduced two letters, one written May 5, 1876, addressed to a young man with whom he was intimate, living near his father; named Charles Coates, in which he makes use of the following language, referring to his father: and one written December 5, 1876, addressed to his brother William, in which he uses the following language: A witness by the name of Frank Graves testified on the part of the state that he knew the prisoner, though not intimately acquainted with him, and that he and prisoner were husking corn together in November, 1877, and the prisoner then said "his father was a mean man; wished somebody would shoot the old son of a bitch; that he, the prisoner, would do it himself if he could get a chance."
This is all the evidence there is in the case showing any threats of violence made by the son against his father. The evidence of the witness Graves was shaken some by his cross examination, and from the fact that he stated that when he heard of the murder he thought of the conversation which he detailed in his evidence, but said nothing about it at the inquest or to any one until the Sunday before the trial, and that he said he had never spoken to the defendant until he was husking corn with him, when he says the conversation took place. The mother and daughter testify that after the son came home in 1877, there was no quarrel between the father and son, and none when Frederick left home in May, 1878; and the correspondence introduced in evidence which took place after he left in May, 1878, does not show any threatening language, or even abusive language, of the father.
The evidence shows that the accused had a pistol shortly before he left home in May, 1878, but that he sold it to one Walter Colton the Saturday or Sunday before he left home in May. No pistol was found upon the prisoner at the time of his arrest, or with any of his effects, or in any place where he had been staying after he left home in May.
The other evidence tending to show that the accused probably committed the murder, was the evidence of the conductor, two brakemen and a passenger on the train going from the west into Janesville on the morning of the 20th of June, 1878. The train stopped at a station called Juda, about six miles from the place of the murder, about 7:30 in the morning. These witnesses all testify that but one passenger got on the train at that station that morning; that he got on upon the north side of the train, which was very unusual; that he seemed excited, and remained on the platform until after the train left the station. He paid his fare to Janesville, and left the train at that place, getting off, not on the platform, but on the other side of the train, among the tracks. The conductor and brakemen recognized the accused as the person who got on at Juda on that morning. These witnesses saw the prisoner the next day at Juda, and testify that they recognized him as the man who got on the train at that place the day before. A witness for the defendant testified that he saw the person who got on the train at Juda that morning; that the man came down the north road; that he got on the train on the north side; that the man had on blue overalls and dark coat; that he was within fifteen or twenty yards of him; that this man was not the accused; that he had seen the accused many times before his arrest.
A witness for the defendant, Wesley Allen, testified that he saw the accused in Janesville on the morning of the 19th "or 20th" of June, 1878, before seven o'clock in the forenoon. William Watson is of the opinion he saw the accused in Janesville on the evening of the 19th of June, about eight o'clock, but is not positive it was the 19th. Henry Blunk saw the accused in Janesville, as he thinks, a day or two before the murder. Robert Graham testified that on the day before the arrest (which would be the 19th of June) he saw the defendant coming out of a barn, in the morning, before seven o'clock, looking as though he had just got up. The barn was the one in which the accused claims he slept. The accused testifies that he was in Janesville all the time from the time he left home, in May, until June 20th, when he was arrested for the murder of his father, and that he did not take the train on the morning of the 20th of June, at Juda, and denies all knowledge of how his father was killed; denies making the statement sworn to by the witness Graves; and also testifies that the letter addressed to Charles Coates, and having his signature, was written by his brother George, and not by himself; that George signed his name to the letter, and that the letter was not in his handwriting.
The only other evidence tending to connect the accused with the murder was the evidence as to the tracks leading from the place where the father was killed. There was evidence tending to show that these tracks were such as might have been made by the boots which the accused wore. The tracks were considerably shorter than the boots. The boots were of a kind and size which were common, and there was no peculiarity in the tracks which indicated that they must have been made by the defendant's boots. The most that could be said of this evidence was what the learned circuit judge said about it, "that it tended to show that they might have been made by the defendant's boots." The tracks were not apparently so different from those which the defendant's boots would make as to render it impossible that they could have been made by them. There was also an item of evidence given by the daughter, that, when they came home on the night of the murder, one of the dogs of the deceased was not at home, but was found at a neighbor's some distance away; that this dog would not follow any of the family away from home except the accused; but that he would sometimes leave home when the accused was not there.
The state also gave in evidence an occurrence which happened at the funeral of the father. One of the sisters fainted, and the accused fainted, or appeared to faint, and when he came out of the faint the minister and another person urged him to confess. The accused replied, "that he had nothing to confess; that he was innocent." The foregoing is substantially the evidence given on the trial which tended to fasten the guilt of the murder upon the accused; and upon this evidence the jury, under the instructions of the court, rendered a verdict of guilty of murder in the first degree.
I have made this statement of evidence tending to show the guilt of the accused, not because this court would consider itself justified in setting aside the verdict as unsupported by the evidence, nor as intimating that we would have reversed an order of the trial judge refusing to grant a new trial for...
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