Schwantes v. State

• Decision Date: 30 January 1906
• Citation: 127 Wis. 160,106 N.W. 237
• Parties: SCHWANTES v. STATE.
• Court: Wisconsin Supreme Court

127 Wis. 160

106 N.W. 237

SCHWANTES

v.STATE.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Syllabus by the Judge.

Frank Schwantes, aged about 32 years at the time of the principal event here mentioned, and William Klokow and wife, then about 65 years of age, were close acquaintances for over 18 years. After residing for five years prior to such event about three-quarters of a mile apart on farms, they made a contract whereby the Klokows conveyed their belongings to Schwantes, reserving a home on their farm, and the latter agreed to furnish them certain specified amounts of money and other articles annually for their support and care in case of sickness, securing the obligation on his farm and the one thus obtained. The arrangement soon became so intolerable that all determined to avoid it in some manner. They negotiated to that end upon the basis of a sale by the Klokows, to a point of substantial agreement. In the morning of the day Schwantes purposed making preparation to pay the Klokows, he was notified that they would not trade as expected. Thereafter during such day he spent the greater part of his time in making visits to the home of the Klokows and removing property therefrom to their annoyance. On his last visit they were not found at home giving rise to the belief that they had gone to put into execution a previous threat to foreclose their mortgage. Thereafter about dark they were at home and in their usual state of health. They were not accustomed to be away from home nights. Before morning the house was destroyed by fire and they disappeared. Suspicion pointed to Schwantes as the cause. His conduct soon changed suspicion to belief. An investigation of the remains of the fire developed the presence therein of portions of one or more human bodies. Such proceedings were then had that in due course Schwantes was convicted of having murdered the Klokows, the evidence being wholly circumstantial.

If an alien serves on a jury without objection being seasonably made and insisted upon, his incompetency is thereby waived whether the case is civil or criminal.

The elements of corpus delicti may be established by circumstantial the same as by direct evidence.

Evidentiary circumstances relied upon and essential to establish any necessary element in a criminal prosecution must, in order to be efficient, be shown to exist to the satisfaction of the jury with the same degree of certainty as the ultimate object of inquiry is required to be to warrant a finding in the affirmative.

Whether any particular evidentiary circumstance claimed to exist tends, in any reasonable view, to prove any element essential to the success of a criminal prosecution, is a matter to be decided by the court on the voire dire and its conclusion cannot be disturbed, unless shown to be clearly wrong.

The weight of evidentiary circumstances is wholly for the jury. If, in their judgment, they point to the existence of the main object of search so strongly as to establish its existence to a moral certainty, they should find accordingly the same as in case of belief to a like degree of certainty produced by direct evidence.

In a criminal prosecution the jury may be instructed that they should acquit the accused, unless the evidence in their judgment so strongly establishes his guilt as to exclude every reasonable theory based thereon of innocence. The instruction applies as well to direct as to circumstantial evidence, and should not be given in a way to suggest infirmity as regards the latter.

If the evidence in a criminal prosecution is susceptible of producing belief of guilt beyond every reasonable doubt, and they find accordingly, their decision cannot be successfully charlenged because in the judgment of others the evidence is only susceptible of producing belief of guilt to a less and insufficient degree of certainty.

Cross-examination of a party for the purpose of discrediting his evidence is governed by the same rules as that of any other witness.

Matters utterly irrelevant cannot be inquired into on cross-examination, even for the purposes of impeachment.

Questions on cross-examination are not relevant for the purposes of impeachment, unless it would be competent to prove the existence of the circumstance suggested by the question otherwise, upon a proper foundation being laid therefor, where one is required.

Questions on cross-examination in regard to merely imaginary circumstances with no reasonable ground to expect favorable answers, or to be able to impeach the answers, are improper and when permitted against objection to an extent liable to prejudice the jury as to the truth of the matter in hand, it is harmful error.

Where the wife of a party acts as his agent in respect to any matter material to be established in a judicial proceeding, either respecting the particular subject of inquiry or a mere evidentiary fact in respect thereto, she is a competent witness for her husband as to everything done by her within the scope of such agency.

The scope of opinion evidence is not limited by the technical meaning of the term “science, art or skill.” It extends to and includes every subject in respect to which one may acquire special knowledge.

The preliminary questions respecting opinion evidence, i. e. that of the competency of the witness and that of whether the subject is within the scope of opinion evidence, are in the field of competency, in which the judgment of the trial court is conclusive, unless shown to be clearly wrong.

Opinion evidence as to a matter of common knowledge is not permissible, though not necessarily prejudicial.

A person of mature years may, regardless of whether he took note of the matter by a clock or watch, testify from his best judgment as to the time of day of any particular circumstance happening under his observation, or the time occupied by the occurrence.

In case of a prosecution for criminal homicide where the body of the victim was destroyed, it is not necessary to a conviction to establish beyond a reasonable doubt the precise means by which death was produced.

In respect to whether death was produced by criminal means it is proper to instruct the jury that they are permitted to consider any cause other than that charged, which may in any reasonable probability have acted in the matter, such as suicide or accident, or the act of some person other than the accused.

A trial court is permitted to instruct the jury as to a particular matter, calling attention to part of the evidence on each side in respect thereto, not giving undue prominence to any thereof, and coupling the same with an admonition that the particular evidence referred to, and all other evidence bearing on the question, should be considered.

The trial court in a criminal prosecution may by appropriate language admonish the jury to proceed to the discharge of their duty bearing in mind the importance of the result to the public and the accused as well.

Error to Circuit Court, Marathon County; James O'Neill, Judge.

Frank Schwantes was convicted of murder and brings error. Affirmed.

Writ of error to the circuit court for Marathon county. On the 11th day of November, 1901, during such term the plaintiff in error, in due form of law, was adjudged guilty of murder in the first degree,--in that on the 14th day of November, 1900, at such county, with malice aforethought he took the life of William Klokow and Ernestina Klokow, his wife,--and was in due form sentenced to be punished by confinement at hard labor in the state prison at Waupun, Wis., during his natural life. Subsequently a writ of error was sued out of this court for a removal of the cause to this jurisdiction for review as to alleged errors duly preserved for that purpose. The history of the case will be given in the opinion.

Bump, Marchetti & Bump (Franklin E. Bump, of counsel), for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen. (Neal Brown, of counsel), for the State.

MARSHALL, J. (after stating the facts).

The following circumstances appear conclusively from the record without controversy, or there is evidence tending to establish the same. William Klokow and Ernestina Klokow were foreign born. They were Germans of humble degree. They settled on the northeast quarter of the northeast quarter of section 3, town 26, range 2, east, in Marathon county, Wis., about the year 1883, and there resided until the 14th day of November, 1900. The last seen of them while living, so far as known, was on the evening of that day. Their remains were subsequently discovered as hereinafter indicated. They made improvements on their land, fitting the same for a moderately comfortable country homestead for humble people of their class. They lived alone and rarely went away from their farm. Their uniform custom was to be at home nights, and to retire early after dark. For a considerable period of time prior to the day named, the buildings on the place consisted of a log house, a barn of considerable size located a short distance northwesterly thereof, a small horse barn, a fair sized barn for small stock, a granary and wagon shed, and one or two other small structures, all the outbuildings being located at convenient distances from the house and in westerly ranges therefrom. The house faced the east with the front part about 103 feet from the highway on the east line of the 40. The body of the house was 16 by 20 feet. It was constructed of hewed logs to the height of about 12 feet, made tight at the points of union between the logs with clay mud. The roof and gables of the house were of boards and shingles and timber supports. The cellar was curbed with logs. On the back part of the house there was a lean-to made of lumber, used for a summer kitchen during a portion of the year, and otherwise as a woodshed and storehouse. The house was whitewashed inside and out and there was considerable clay mud used in its construction inside, particularly in...