State v. Dunn

• Decision Date: 03 May 1960
• Citation: 103 N.W.2d 36,10 Wis.2d 447
• Parties: STATE of Wisconsin, Respondent, v. Edward DUNN, Appellant.
• Court: Wisconsin Supreme Court

Page 36

103 N.W.2d 36

10 Wis.2d 447

STATE of Wisconsin, Respondent, v. Edward DUNN, Appellant.

Supreme Court of Wisconsin.

May 3, 1960.

Nathan J. Rakita, Milwaukee, James D'Amato, Robert T. McGraw, Waukesha, of counsel, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., George E. Lawler, Dist. Atty., Waukesha, for respondent.

MARTIN, Chief Justice.

The Dunn and Pfeiffer families had been friends for about four years previous to August 14, 1959. In July of 1958 the two couples went on a vacation trip together. For over a year prior to August 14, 1959 Dunn and Mrs. Pfeiffer had been in love and carried on an illicit affair, unknown to their spouses.

The following letters from Dunn to Mrs. Pfeiffer are in evidence:

'My Darling Marge:

'This is a something, I rarely do is write a letter, However, here goes.

'Our problems are mutual and time and patience will be our reward. Although there is a superstitious one on this end there has not been any comments regarding the two of us.

'With reference to talking in my sleep, I don't think we have to worry as I am sure anything I may have said would have come out already.

'Your note recently was most heart-warming although worry will not help either of us--whatever is to be will be.

'Please remember I can do no good away from you if any accidents happen that would separate us for any length of time. I fully realize this and will always have that in my mind.

'With our personal feelings being very hard to control, I will always put our togetherness ahead of everything else.

'Our relationship has gone beyond friendship and it is still my intention of securing you. (By Hook or Crook) Two individuals as us have acquired something many, many people look, think and maybe acquire. This is my feeling, otherwise I would not put it in writing.

'I do believe that if I can beg forgiveness of you and control myself in your presence allowing someone to think and then--Bingo--Pull a surprise element our changes would be better and quicker.

'I will say this that if you have to move in with your mother-in-law that would be your opportunity to rebel and start your end of things. If you should start, use our finances. If not enough please let me know and I will acquire some more somehow.

'If we both would do something at the same time, the cat would be out of the bag. 2+2=4. Hope you understand if not I will explain to you when I see soon.

'I am asking questions here as to whether or not anybody has been informed about us. The reply has been negative.

'She thinks without saying, this is a passing fancy of mine. I am very happy to hear this guarded comment.

'I hope you do not think so. My faith in you far surpasses any doubts.

'You have done something to me she could not do in 20 years. Given me something to look forward to. And after I acquire you, the moments left for us will be cherished ones.

'I received another compliment about you and you're lovely blue dress. We were round-dancing when we were seen together and the comment made by a non-square dancer was the perfect ease at which we did the dance. We were made for each other. As I hear these things I am not trying to raise my ego or get you flustered, but rather to prove to you that only time & patience will pay off.

'Whoops, Here they come--3:30 P.M.--Have now retired to the library 12:45 P.M.

'I was not in Oconomowoc regardless of what Rex says. He must have been mistaken.

'With reference to letters or memos being left around I don't think she has done anything like that. I don't think she ever thought of such a thing.

'Also do not worry about the children. They have no knowledge of anything irregular between her and myself. I go so far and no further.

'Well, Darling this has been a real happy chore.

'Have Faith, We'll Win.

'Love

'Ed.'

'11-16-58

'My Darling Marge:

'I goofed Saturday by coming home and laid down and fell asleep in the front room. My intentions were to go back to the shop and call you.

'What I have to say now is awfully hard to say. So before you read too far count 10----

'Last Thursday you made me very jealous, naturally, I now have something to be jealous about and that was this other guy pestering you. I don't like it. I am sorry if I have offended you, but that is the way I feel. You'll find it out sooner or later so I might just as well tell you now Darling, I can't help it.

'Again, patience will be our reward. I realize patience can run out but don't let it and the thing or end we are working for will be destroyed.

'Please add it to our fund that we will be needing.

'I Miss You!

'I Need You!

'I Love You!

'Yours

'Ed.

'P.S. Don't mind my drinking. I am trying to start something.

'Ed.'

On the morning of August 14th Dunn telephoned Mrs. Pfeiffer and arranged to meet her at a trailer court outside the city of Oconomowoc at 9:00 that evening. She met him as planned and took him in her car to the Pfeiffer home at 652 Roland avenue, Oconomowoc, arriving there at approximately 9:30. She left Dunn in the back seat of the car and went into the house. Mr. Pfeiffer was at home watching a football game on television. They decided they were hungry and Pfeiffer said he would go out for a couple of sundaes during the half time of the game. He left the house at 10:00. Pfeiffer testified:

'I went out to the car, rolled down the window, put the key in the ignition. The car has not been starting too good lately. Went to start the car, all of a sudden I felt this object come over my face. At first I thought it was just a cobweb or something. A voice said, 'This is all for you bud.' I turned around and struggled with a party in the back seat. I at first thought it was some drunk that had picked my car to sleep it off in. Things got rough as we exchanged a few blows. I dove out of the window of the front door, looked back at the party in the front seat, went toward the road. Then he got out of the car. I said what the heck's the matter with you, Ed? He said I'm sorry, I guess I went off my rocker for a minute, then he walked toward the garage and went off, and that was it.'

When his assailant got out of the car he recognized him as Dunn. Dunn was wearing a blue slack suit and a pair of bright blue gloves. Pfeiffer went into the house and called the police. His injuries were a cut across the bridge of his nose, a black and blue spot on the left cheek and a slight mark around his neck.

Police officers Braatz and Koloske arrived 'a very few minutes' after the call, Pfeiffer testified, and he told them what happened and identified his assailant as Edward Dunn. At Pfeiffer's suggestion, they went out to look at the car and found two pieces of wire on the floor in the back seat. Pfeiffer made another inspection of the car the following morning when he found that the dome light had been removed, the bulb and cover lying on the floor in the back seat.

Pfeiffer testified he and his wife were separated from the middle of July to August 8, 1959 because of marital difficulties, but he did not know of the relationship between Dunn and his wife until after the incident of August 14, 1959.

He testified that the fight he had with Dunn in the car was not 'vicious,' and that there were probably not more than 10 or 12 blows struck; that he did not at that time feel that his life was in danger. He testified:

'I came to that conclusion when I went into the house, that my life was in danger but maybe that would be anybody's thinking after you come in and are kind of bloody.'

Defendant was arrested by the Milwaukee police on the early morning of August 15, 1959 upon a fugitive complaint from the Oconomowoc police department for 'aggravated battery.' He was taken to Waukesha, charged with attempted murder, entered a plea of not guilty and was tried on that charge.

Before considering the questions raised by the defendant we may say that the state contends that no motion for a new trial was made in the trial court. It appears by stipulation, however, that defendant made a motion for a new trial but through inadvertence it was omitted from the bill of exceptions; it was later sent on to this court.

Defendant's first contention is that there is no evidence to show any intent on his part to strangle Pfeiffer; that the only testimony to that effect is by police officers Braatz and Hollatz, which was hearsay and not a part of the res gestae. The state claims that the evidence in question is part of the res gestae and we hold that it is. See 24 NACCA Law Journal, p. 123, et seq. The rule has been stated as follows:

'In discussing the subject of res gestae, it is said in Wigmore on Evidence (1st ed.), at section 1746, that: 'The typical case presented is a statement or exclamation, by an injured person, immediately after the injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him.' And in section 1749: 'The utterance, it is commonly said, must be 'spontaneous,' 'natural,' 'impulsive,' 'instinctive,' 'generated by an excited feeling, which extends without let or breakdown from the moment of the event they illustrate.'' And in section 1750: 'There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. * * * The utterance must have been before there has been time to contrive and misrepresent; i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.' The decisions of this court upon the subject are in harmony with this statement of the principle upon which the doctrine of res gestae is based. (Citing cases)' Kressin v. Chicago & N. W. R. Co., 1928, 194 Wis. 480, 485, 215 N.W. 908, 909.

Hollatz testified he was on duty at the police department office at Oconomowoc on the night of August 14, 1959 and----

'* * * I received a telephone call. Party stated...