Perugi v. State
Citation | 104 Wis. 230,80 N.W. 593 |
Parties | PERUGI v. STATE. |
Decision Date | 20 October 1899 |
Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to municipal court of Milwaukee county; Emil Wallber, Judge.
Napoleon Perugi was convicted of murder in the first degree, and he brings error. Affirmed.Carroll & Carroll, for plaintiff in error.
Ernest Warner, Third Asst. Atty. Gen., and A. C. Umbreit, Asst. Dist. Atty., for the State.
The plaintiff in error was convicted of murder in the first degree, and sent to state's prison for life. He now seeks to have such conviction reviewed by this court on the ground of certain alleged errors in refusing to instruct, and in misdirection of, the jury.
1. The principal ground of defense was that the killing was done in self-defense. Counsel for the accused asked the court to instruct the jury as follows: “You are instructed that the law is that in the assault of a powerful man upon a weaker the necessity of taking life in self-defense will be more easily discoverable than in an attack by one man under equal circumstances, and the probable ability to defend without fatal recourse must depend upon the means and power of defense in the assaulted person.” This request was refused. The propriety of such an instruction must depend upon the character of the assault and the attendant circumstances. A homicide is justifiable, under the statute, when committed in the lawful defense of the person of the slayer, “when there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished.” This instruction assumes that an assault had been made,--a question that will be treated in another branch of this opinion. But, admitting that an assault had been made by deceased, the question of disparity in size of the parties did not justify a killing, unless both conditions of the statute are met by the surrounding circumstances. The comparative size of the parties is only important in determining what an ordinarily prudent man would have done in the position of the accused, hearing what he had heard, seeing what he saw, knowing what he knew, and standing what he stood. All of these considerations were submitted to the jury in the general charge, and we are unable to see how the defendant could have been prejudiced by the refusal to submit this instruction.
2. Another error is said to have resulted in the refusal of the court to charge the jury that the law does not require an assaulted party to call upon bystanders before receiving an attack. The evidence fails to disclose any necessity for such an instruction. The court gave full and complete instructions on the law of self-defense, covering every phase of the testimony, and as favorable to the defendant as due regard for the law and the facts would warrant.
3. The court submitted to the jury the question of defendant's guilt of murder in the first and second degrees, and refused to submit either the second, third, or fourth degrees of manslaughter, as requested by the accused. Manslaughter in the second degree is where one unnecessarily kills another while resisting an attempt by such other person to commit any felony, or do any other unlawful act, or after such attempt has failed. Rev. St. 1898, § 4354. The very essence of this degree of homicide is that the killing should be unnecessarily done, and done while resisting an attempt to commit a felony, or while resisting an attempt to do any other unlawful act, or after such attempt shall have failed. There is no pretense in this case that the deceased was killed while attempting to commit a felonly. It is insisted, however, that such killing was done while accused was resisting an assault made upon him by deceased. In this view of the case, we have read the testimony with the most careful scrutiny. The fracas occurred in a saloon. The parties had been singing, eating, and drinking together for several hours. They were partially intoxicated. Mrs. Martino, the wife of the saloon keeper, was present, and her attention was directly attracted to the parties. Other witnesses were also present, and saw and heard all that occurred. Not one of them, even under a close and sharp cross-examination, would testify that any assault was made by the deceased. All the evidence upon which the claim of an assault is based came from the accused. On direct examination he testified as follows: On cross-examination he says that Dencie made some slurring remarks about the Catholic Church, and cursed the Madonna, and that when he said that he pulled his revolver, and shot him. Looking at the evidence as a whole, and considering it in the light most favorable to the accused, we are unable to discover anything in it that would warrant the court in submitting this degree of homicide to the jury. Admitting that the deceased “made a grab” at him while they were at the table, all of the circumstances and the accused's own testimony show that the shooting was not done in resisting such assault. As stated in Fertig v. State, 100 Wis. 301, 75 N. W. 960: “It is only where there is evidence tending to establish a particular offense of criminal homicide that the trial court is required to instruct the jury in regard to it.” Manslaughter in the third degree is where one kills another in the heat of passion, without design to effect death, by a dangerous weapon. Rev. St. 1898, § 4354. A full and complete answer to the contention that the degree of homicide should have been submitted to the jury is found in the testimony of the accused. He says: The evidence failing to show the element of heat of passion, there was no foundation upon which to base a submission of this degree of homicide to the jury. The same element is necessary in manslaughter in the fourth degree, and the court was fully warranted in refusing to submit it.
4. In making a statement of the facts in the case, the court made use of the following language: “It appears beyond question that on the 15th day of April, 1898, in the saloon of John Martino, located at 137 Huron street, in this city, the defendant discharged a loaded revolver at Peter Dencie, inflicting upon said Dencie a dangerous wound, from which death ensued eleven days thereafter.” This is said to have been error, because “the point whether such wound was dangerous, and whether death resulted eleven days thereafter from such wound, was a disputed and strongly contested fact” on the trial. The question may have been strongly contested, but the evidence in regard to it was all one way. Dr. Sifton, the surgeon in charge, and the one who conducted the post-mortem examination, described the wound, and his treatment of it. An X-Ray examination was made, and the bullet was found to have lodged in the spinal column, at the fourth dorsal vertebra. The conditions were such that an operation was deemed advisable. The doctor testified: No physician disputed the existence of the conditions found by Dr. Sifton, and all admit that, if such conditions existed, the wound was necessarily fatal. The court was amply justified in making the statement quoted. See Sharp v. State, 51 Ark. 149, 10 S. W. 228.
5. We now come to a branch of the case that has given us considerable trouble. The court gave the following instructions to the jury, which were duly excepted to: ...
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