Pleimling v. State
| Decision Date | 22 April 1879 |
| Citation | 1 N.W. 278,46 Wis. 516 |
| Parties | PLIEMLING v. THE STATE |
| Court | Wisconsin Supreme Court |
ERROR to the Circuit Court for Monroe County.
The case is stated in the opinion.
Judgment reversed and the cause remanded for a new trial.
J. W Losey and S. N. Dickinson, for the plaintiff in error.
For the state, there were briefs by J. M. Morrow, District Attorney of Monroe county, and A. E. Bleekman, and oral argument by Mr. Bleekman and H. W. Chynoweth, Assistant Attorney General.
This is an information for murder in the first degree, with five counts, stated in common-law form; the first count of which charges the murder of one Laura Van Voorhees, the mother; the second of Edward, her son; the third of Stella, her daughter the fourth, of Claudia, her female babe; and the fifth, the murder of all four together.
The verdict of the jury was, guilty of murder in the third degree, under the fifth count of the information.
The facts in brief were as follows: In the evening of the first day of November, 1877, the small house in which the Van Voorhees family lived, was burned; in the smouldering ruins of which the partly burned remains of Laura Van Voorhees, the mother, of Edward, her son, of Stella, her daughter, and of Claudia, her female babe, were found. The mother was twenty-five years, Edward seven years, Stella four years, and Claudia seventeen months of age. They had evidently retired to rest for the night; the mother, Stella and Claudia side by side in a bed in one corner of the room, and Edward on a lounge or cot in another corner, their usual sleeping places; and their remains were found in the same position relatively as lying when asleep, with the bed and the cot burned from under them. Parts of the cranium of each one were unconsumed by the fire; and the great preponderance of the medical testimony tended to show that the skull of each one of them had been broken and crashed in by the use of some blunt instrument with great violence, producing death before the burning. Near some of the remains, a hammer with a broken handle was found, with which such wounds might have been made.
The verdict of the jury, convicting the defendant of murder in the third degree of all of these persons together, rests wholly upon the assumption that he committed the deed substantially in the manner and under the circumstances above stated.
The relationship, sex, age and condition of the persons killed; the time, place and horrible circumstances of the deed; the mother with her little daughter and female babe by her side in the bed, it may be, and quite likely, asleep; and the little boy on his cot in a distant corner of the room, in the night time, with no appearances of struggle or resistance; their skulls crushed in with a blunt instrument, used with great violence, producing almost instant death; and the house set on fire to consume the bodies of the slain and to exterminate the evidence of the homicide--must all be considered in determining the character of the act, and the degree of guilt involved in its perpetration. There being no direct evidence whatever of the homicide, the case rested upon purely circumstantial evidence of the previous relations and conduct of the parties, and of subsequent discovery of isolated facts and circumstances tending to connect the defendant with the homicide, which it is unnecessary to notice. From the evidence and the instructions of the learned judge to the jury, it is apparent that the case was tried and considered by the jury upon the suppositions or theories: first, that the deaths were produced by the burning building; second, that it was murder in the first degree; and third, that the defendant did the killing without any design to effect death, while engaged in the commission of rape upon or adultery with the deceased Laura Van Voorhees, and was therefore guilty of murder in the third degree. The verdict must have been rendered upon the last theory or finding.
We shall not inquire whether there was sufficient evidence to connect the defendant with the homicide, but assume that there was; and we shall first consider the case conceding that there was sufficient evidence for the jury to find that the defendant, when he did the killing, was engaged in the commission of rape or adultery.
Murder in the third degree is "the killing of a human being, without a design to effect death, by a person engaged in the commission of any felony." Sec. 4345, R. S.
The three degrees of murder by our statute were comprised in the general crime of murder at common law; and murder in the third degree must have the same requisites as murder at common law; and the degree established by the statute is based, not upon the fact that it is any the less murder, but upon the character of the homicide, and the punishment to be suffered for the homicide, committed under such conditions and circumstances as would be murder at common law. The offense of murder in the three degrees, as defined by our statute, was so before the statute, and is but the adoption or introduction into the statute, of the common law description of the crime. The People v. Enoch, 13 Wend. 159.
It is sometimes stated that the object of this classification is to make a distinction between murder with express malice and murder with implied malice. In the killing without the design to effect death, there can be no actual malice or intention in the act itself; and in murder in the third degree such malice and felonious intent, necessary to make it murder, is derived from the felony by the commission of which, or in the commission of which, the killing happens. In the state of Maine, murder in the second degree is the same as murder in the third degree by our statute; and in State v. Smith, 32 Me. 369, the court says "The malice is implied when the killing is committed by a person when in the perpetration of a crime punishable in the state prison; and if in the perpetration of that offense a killing occurs, the malice making murder in the second degree may be implied." This is substantially the definition given to this particular kind of murder at common law. "Such killing shall be adjudged murder which happens in the execution of an unlawful action principally intended for some other purpose, and not to do a personal injury to him in particular who happens to be slain;" or, "Such killing as happens in the execution of an unlawful action, whereof the principal intention was to commit another...
To continue reading
Request your trial