Parke v. State

• Citation: 235 N.W. 775,204 Wis. 443
• Parties: PARKE v. STATE.
• Decision Date: 07 April 1931
• Court: United States State Supreme Court of Wisconsin

204 Wis. 443

235 N.W. 775

PARKE

v.STATE.

Supreme Court of Wisconsin.

April 7, 1931.

Error to review a judgment of the Circuit Court for Monroe County; James Wickham, Circuit Judge.

W. B. Parke was convicted of manslaughter in the second degree, and he brings error.--[By Editorial Staff.]

Affirmed.

Plaintiff in error, hereinafter called the defendant, was prosecuted under the provisions of section 340.16 and convicted of having feloniously produced the death of one Dorothy Schultz.

From a judgment of conviction entered November 22, 1930, and sentence to the state prison for an indeterminate term of from four to six years, pursuant to the provisions of section 340.17 of the Statutes, the defendant sued out a writ of error.Hill, Beckwith & Harrington, of Madison, for plaintiff in error.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William M. Gleiss, Dist. Atty., of Tomah, for the State.

NELSON, J.

The defendant was convicted of the crime of manslaughter in the second degree and duly sentenced to the state prison pursuant to the provisions of section 340.16 and 340.17 of the Statutes. The information substantially charged that the defendant feloniously performed an abortion operation upon Dorothy Schultz on the 19th day of June, 1929, which produced her death on the 3d day of July, 1929, at the county of Monroe in the state of Wisconsin.

The defendant earnestly contends that the evidence adduced upon the trial was insufficient to prove the defendant guilty beyond a reasonable doubt of the crime charged.

[1][2] The defendant has the right to have his guilt determined by the court as well as by the jury. He has the right to have “the solemn opinion of the judge who tried the cause, after a careful hearing of all that may be alleged against its justice, that it ought to stand.” Ohms v. State, 49 Wis. 415, 5 N. W. 827, 831. He also has “the right upon writ of error, * * * to demand the deliberate opinion and judgment of this court upon the question whether his guilt was sufficiently proven.” Lonergan v. State, 111 Wis. 453, 456, 87 N. W. 455, 456;Gerke v. State, 151 Wis. 495, 496, 139 N. W. 404;Hamilton v. State, 171 Wis. 203, 209, 176 N. W. 773;Manna v. State, 179 Wis. 384, 392, 192 N. W. 160;Eckman v. State, 191 Wis. 63, 86, 209 N. W. 715;Cobb v. State, 191 Wis. 652, 664, 211 N. W. 785.

[3] This right of a defendant who has been convicted of a crime, after due and proper trial, is clearly established. This right, however, is to the solemn and deliberate judgment of this court and each member thereof, on the question whether his guilt was sufficiently proven. In other words, he has the right to demand of this court its solemn and deliberate judgment on the question whether there was adduced upon his trial evidence which, if believed by the jury and rationally considered, was sufficient to prove his guilt beyond a reasonable doubt. This is the extent of this right and the extent of our solemn duty. A defendant has no right to demand that this court and every member thereof be affirmatively convinced of his guilt beyond a reasonable doubt. An appellate court cannot, for obvious reasons, properly function as a trial court or as a jury. When there is a conflict of evidence the weight thereof is for the determination of the jury. As was recently said in State v. Hintz, 200 Wis. 636, 641, 229 N. W. 54, 56: “The power of the court to disturb the finding of the jury ends with the discovery of evidence to sustain the verdict. In the interest of exactness it should perhaps be stated that this rule is subject to two qualifications: One is where the finding of the jury is contrary to established physical facts, and the other is where it is contrary to all of the reasonable probabilities. * * * No rule is more thoroughly established by the decisions of this court than that where conflicting inferences may be drawn from the facts proved the question is one for the jury. * * * Whatever doubts we may entertain concerning the justice of this verdict, our power to disturb it is limited by established rules of jurisprudence designed to protect the sanctity of findings of fact, a function which constituted society has committed to the jury.”

[4] This court, however, may, when it has great doubt as to the justice of a judgment of conviction or when it seems probable that justice has miscarried by the verdict rendered, order a new trial. Section 251.09. Paladino v. State, 187 Wis. 605, 205 N. W. 320;State v. Hintz, 200 Wis. 636, 229 N. W. 54. This brief discussion has been indulged in at the outset for the purpose of making clear the rights of a defendant convicted of crime and the solemn duty of this court in reviewing criminal cases. In the light of the foregoing law, we may now proceed to discuss the contentions of the defendant in connection with the evidence.

[5] The defendant contends that, in order to maintain a prosecution under section 340.16, involving the death of a woman, the state must prove beyond a reasonable doubt that the deceased was pregnant. As to this contention there cannot be the slightest doubt. Pregnancy is clearly an element of the offense defined by section 340.16 and by similar statutes of other states. People v. Richardson, 161 Cal. 552, 120 P. 20;People v. Patrick, 277 Ill. 210, 115 N. E. 390;State v. Stafford, 145 Iowa, 285, 123 N. W. 167;Dixon v. State, 46 Neb. 298, 64 N. W. 961;Williams v. State, 16 Okl. Cr. 217, 182 P. 718. Many other cases to the same effect can be cited.

[6][7] The defendant's principal contention is that the state failed to prove beyond a reasonable doubt that Dorothy Schultz, the deceased, was pregnant. This contention necessitates a review of the evidence adduced by the state and which the state claims fully supports the verdict. In June, 1929, Dorothy Schultz was just past nineteen years of age. She resided with her parents at Tomah, Wis. She had just graduated from high school and was about to take a government position in Washington. Two or three weeks before June 16th she had told her mother that she was pregnant, having missed two menstrual periods. On June 14th she was examined by Dr. Winter of Tomah for the purpose of determining whether she was pregnant. Dr. Winter was of the opinion that she was in that condition. Shortly thereafter, on June 15th or 16th, she was taken by her mother to the defendant at Camp Douglas for the purpose of making arrangements with the defendant to perform an abortion operation upon her. The defendant at that time examined her and expressed the opinion that she was pregnant. He agreed to help her out of her scrape for the sum of $150 cash. The sum demanded seemed excessive to the mother, but, on being assured by the defendant that he knew his business, and that that was his regular charge, the mother agreed to procure the amount demanded and to bring it to the defendant when Dorothy was brought back again. It was arranged that Dorothy should return to the home of the defendant in the immediate future, but, due to the inclemency of the weather, Dorothy was not brought back to the defendant's home until the 19th of June. At that time the mother requested permission of the defendant to stay at his home while Dorothy remained there, but the defendant objected to the mother's staying there. The mother then suggested that she would like to stay at some hotel at Camp Douglas while Dorothy was being treated by the defendant, but the defendant likewise objected to this suggestion. On the 19th of June the defendant assured the parents that everything would be all right, that he would perform the operation in the morning. The parents thereupon paid to the defendant the sum of $150 in bills. At this time Dorothy appeared to be in good health, although about two weeks before this time she had had a sore throat. The next day, June 20th, the mother went to Camp Douglas and brought Dorothy home. She was apparently feeling pretty well, but went to bed, and later on in the evening experienced a rather severe chill. A few days after June 20th the defendant was notified of the unfavorable condition of...