People v. Repke

• Decision Date: 04 January 1895
• Citation: 103 Mich. 459,61 N.W. 861
• Court: Michigan Supreme Court
• Parties: PEOPLE v. REPKE.

61 N.W. 861

103 Mich. 459

PEOPLE v. REPKE.

Supreme Court of Michigan

January 4, 1895

Error to circuit court, Alpena county; Robert J. Kelley, Judge.

William Repke was convicted of murder, and brings error. Affirmed.

James D. Turnbull, for appellant.

A. A Ellis, Atty. Gen., and James McNamara, Pros. Atty., for the People.

LONG J.

Respondent was convicted in the Alpena circuit of the crime of murder in the first degree, and sentenced to imprisonment in the state prison for life. It appears from the uncontradicted evidence that on August 23, 1875, 12 persons, among whom was respondent, met at a place known as "Reinke's Hill," about 4 1/2 miles from Rogers City, in Presque Isle county; and after talking over the object of the meeting, and taking an oath to keep secret what should take place, they went together to Rogers City arriving there in the evening, and shot through the window and killed Albert Molitor, while he was engaged in his business in the office connected with his store. The undisputed evidence shows that it was the understanding before they left Reinke's Hill that they should go and kill Molitor. That was their business to Rogers City that night. The evidence as to the murder, the manner of killing and the circumstances surrounding the same were uncontradicted.

The respondent himself took the stand, and testified that he was present, and saw Molitor shot, and that he was shot through the window on the night in question by some of the party with whom the respondent visited Rogers City, but that he did not do the shooting himself. A number of the persons who were present and assisted more or less in the murder testified that the respondent was one of the ringleaders in the conspiracy to take the life of Molitor. Stephen Reiger testified that respondent came to him, and got him to join the enterprise, on the theory that they were going to kill a bear; and that he was not acquainted with the facts or object of the meeting until he had actually arrived at the hill on the evening the murder was committed. Frederick Sorgenfreid testified that respondent went through the township and got the men to meet at the hill. Ferdinand Bruder testified that respondent came to his house on the day they met at the hill and told him, if he did not go, he would be killed. The respondent testified that, when near Rogers City, Barabas, one of the party, went forward to see if he could kill Molitor alone; that they heard a shot, and then there was some talk about going, but Grossman said they would have to stay, because maybe they had got Barabas, and, if so, they would have to go and get him free; that Barabas came back, and, having fired off his gun while he was gone, had to reload it there, in the presence of respondent and the others. Respondent then says: "He load his gun, and then we go along, and as we come along he tell us Molitor was there in the office, and we go right around on the office window. Where every man is going from that time I can't say. Them four men, Jacobs, Barabas, Fuhrmann, and Grossman, go right from the window close on the corner of the window, and stand up on the window, right short. I was standing there by the telegraph poles and fence posts, and all kinds of wood laying there. *** Then, at one, Molitor came out of little room, out of other little room, and had a big book on his hand, on his arm. And, so as he come out of that little room out, them four men raised up his gun onto the window, and Molitor go with the book, and lay the table, and, so as he put the book on this table, that moment he shooting. Just the moment he lay the book down, that minute Molitor fall down. Molitor holler up, 'Oh, God!' I turned around and ran away." The evidence shows that Molitor was shot with several buckshot, coming from different angles, in his side and back, having been sitting or standing with his side to the window when the guns were discharged. A young man, by name of Sullivan, a clerk in Molitor's employ, was shot at the same time, and, some of the witnesses testify, by the respondent. The theory of the people was that respondent was one fo the willing participants in this murder. The respondent, on the other hand, contended that he assisted in the killing of Molitor, or went with the party, for the purpose of protecting himself, so that he might afterwards be unmolested, or, as claimed by his counsel, because he was compelled by threats to go. Respondent testified as to the threats, substantially, that the first his attention was called to the killing of Molitor was some three days before the crime was committed. He says that Banks came to him, and told him that Hoeft and Molitor were having a lawsuit; that, if Molitor lived, he would beat Hoeft, and in such case all the farmers would have to run away; that Molitor should be shot. In answer to this he says he told Banks: "I can't go along with you to shoot a man. Mine heart can't do that to shoot a dog. I got a bad dog. I got to ask mine neighbor to come and shoot him. I can't do it myself." To this Banks replied that they had four men to do the shooting, and that twelve men would make a jury, and what "twelve men do everybody got to follow." Respondent replied, "I got no gun"; and Banks said: "I furnish you some things for that time, and you got to go. I told you about that now; you got to come." Respondent said he did not like to go, when Banks answered: "Well, you got to go if you like to live. If you back out, if you don't come, maybe we shoot you on the same night, and you been shot the first night if we can get you." Respondent says that, at the time Banks told him to come to the hill on the third night following, he asked who would be there, and Banks said: "You don't need to know that. You come on that place where I tell you. You will find all the man come together there, and you will find out who is there." He says, further, that, after Banks went away, he went into the house, and told his wife what Banks had said. She cried, and he told her he would not go. But she said: "Well, maybe you could go, and you do nothing, and nobody could do you nothing." And he said he would go to the hill, and find out who would go. He joined the party, made no protest, took the revolver furnished him, and went with them. He drank with the rest on the way down. He says that, when Banks gave him the revolver, he told him it would come handy when he went into the store to fight. It also appears from the respondent's testimony that, some time after the murder, Hoeft gave him $100 not to go away out of the country, as Hoeft was afraid that he (respondent) would talk about it. He was asked if Banks told him that Molitor and Hoeft had a lawsuit. "A. Yes. Q. And, if Molitor lived, he would win the case? A. Yes. Q. And you wanted to kill him so that he could not testify in the case? A. That is what he told me. Q. That is the way you understood it? A. Yes. Q. Really what you were down there for the kill Molitor to help those folks,-to help Hoeft out? A. Yes. Q. You went along to protect them, to keep them if they went in, anybody jumped onto them,-get them clear? A. Yes. Q. That is what you agreed to do? That is what you went for? A. Yes." He was then asked: "Mr. Repke, what made you go that night with those people down to Rogers City to murder Molitor? What forced you to do this? A. I was scared for mine living. If I don't go to kill Molitor, I be killed. Q. You were afraid they would kill you if you didn't do this? A. Yes. Q. Is that the reason you went and took part? A. Yes. You would not have gone if you had not been afraid? A. If I was not afraid, I would not go. Molitor was my best friend." This is substantially all the testimony bearing upon the questions raised in the case. It appears from this tha the threats, if any were made, were made by Banks three days before the murder. No one threatened him at the hill. No one but Banks told him he must go. Banks was not at the hill, and it is not claimed that Banks was present at the murder. The substance of the threats, as claimed by respondent, was that, three days before the murder, banks told him that, if he did not go, when they caught him they would kill him.

At the close of the testimony, the respondent's counsel asked the court to instruct the jury, as follows: "First. That in order to find the defendant guilty, in this case, of murder, the jury must find that the defendant, at the time of the transaction and killing, was a free agent. Second. If the jury find that the defendant was coerced into taking part in this transaction, then he is not guilty of murder. Third. In order to convict defendant of murder, the jury must find that defendant either aided, abetted, or counseled the killing of Albert Molitor. Fourth. The fact of defendant going with these other parties that killed Albert Molitor at Rogers City, and meeting with them at Reinke's Hill, or being present at the shooting, is not enough to convict defendant of murder. In order to make defendant guilty of murder, the jury must find that the defendant did certainly aid, abet, or counsel the killing of Albert Molitor, and this must be determined from all the evidence and all the circumstances surrounding this transaction, and the jury must find this beyond reasonable doubt. Fifth. There is no evidence in this case that will warrant the jury in finding that defendant fired the shot that killed Molitor. Therefore the jury must find that the defendant voluntarily accompanied or assisted those who did the killing. Unless the jury find this beyond a reasonable doubt, then they must acquit defendant. Sixth. The jury must find beyond reasonable doubt that defendant voluntarily united himself with those who did the killing in this case, and either aided, abetted,...