State v. Genova

• Decision Date: 09 March 1943
• Parties: STATE v. GENOVA.
• Court: Wisconsin Supreme Court

242 Wis. 555

8 N.W.2d 260

STATE

v.GENOVA.

Supreme Court of Wisconsin.

March 9, 1943.

Appeal from a judgment of the Municipal Court of Milwaukee County; Max W. Nohl, Judge.

Gaetono Genova was convicted of murder in the first degree, and he appeals. [[[By Editorial Staff.]

Judgment affirmed.

Defendant was convicted of murder in the first degree on January 30, 1941, and sentenced to life imprisonment. From the judgment on the verdict, defendant appeals.

On December 19, 1940, the defendant killed his wife by stabbing her. Defendant testified that over a period of years he had been unable to satisfy his wife sexually and that she had constantly abused him on account of this; that on the morning of December 19 they had a quarrel on this subject, that while he was in the grocery store in front of their living quarters, she came in and started to rearrange the canned goods. He told her to leave that alone, to sweep the house floor if she wanted to and thereupon she started calling him all the bad names she knew and after hearing this, “everything got black in front of (his) eyes and (he) took the knife” and killed her. On that same day he told the Captain of the Detectives that he meant to kill her because he was “real mad.” Defendant testified that his wife made his life miserable over a period of years by her sexual demands, but the children of the couple testified they knew nothing of this as being a cause of the difficulty; that the mother was always docile and that the defendant treated her as a slave.

The information charged the defendant with murdering his wife “unlawfully, wilfully, feloniously and of his malice aforethought.” Defendant pleaded not guilty and also entered a special plea of insanity. The trial judge instructed the jury as to the issue of insanity and told the jury:

“If you are satisfied by the credible evidence that at the time of the commission of the acts charged and alleged against him, the defendant was insane, or if after giving all of the credible evidence full, careful and fair consideration, there is in your minds a reasonable doubt as to the defendant's sanity or mental responsibility at the time of the commission of the acts charged and alleged against him, then it is your duty to so find, and find him not guilty because insane at the time of the commission of the acts charged and alleged against him.”

There were submitted the questions of guilt of murder in the first and second degree. The court refused to submit manslaughter in the third degree. The jury found the defendant guilty of murder in the first degree.

The state introduced in evidence pictures showing the condition of the body of the deceased, some of which were enlarged duplicates, and also the clothes she was wearing at the time she was slain. The trial court permitted the clothes and enlarged photographs to be taken into the jury room.

Appellant assigns as error the refusal to submit manslaughter in the third degree, the admission in evidence of the clothing and the duplicate enlarged photographs and allowing them to be taken into the jury room. Appellant also alleges that the court erred in permitting the prosecuting attorney during closing arguments to refer to the defendant as a “cruel, brutal beast.” Finally, the appellant alleges that the court erred in refusing a new trial on the grounds that the verdict was the result of bias, prejudice and passion and on the grounds that justice had not been done.

James D. Sammarco, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., H. J. Steffes, Dist. Atty., Charles J. Kersten, and Nathan W. Heller, Asst. Dist. Attys., and George A. Bowman, Deputy Dist. Atty., all of Milwaukee, for respondent.

FAIRCHILD, Justice.

Under the evidence there was a premeditated design to kill, making the crime murder in the first degree unless the accused was insane at the time. There was no occasion, as matters developed, for giving the jury, even if it were so inclined, an opportunity to indulge in sympathetic compromise and fix the guilt as murder in the second degree or manslaughter in the third degree, and no occasion exists for granting a new trial for any errors assigned. A killing to be murder in the second degree must be by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without any premeditated design to effect the death of the person killed; but when deliberation and premeditation and other characteristics necessary to murder in the first degree are established beyond a reasonable doubt, the insanity defense having failed, the conclusion that accused was guilty of murder in the first degree reached by the jury would seem to follow necessarily.

The purpose of the procedure in a criminal trial is to find, as exactly as is humanly possible, where intent is the important element, the exact degree of crime committed. If the killing is shown to be malicious and nothing more but evincing a depraved mind regardless of human life, it would be less than murder in the first degree. There are cases where the circumstances have been such that the determination of whether the act was from a premeditated design to kill his victim or was the result of an act imminently dangerous to others and evincing a depraved mind regardless of human life or whether the accused killed another in the heat of passion without a design to effect death by a dangerous weapon had to be left to the jury. However, a case does not fall within that category when the accused acting free from insanity and according to credible, uncontradicted testimony with an intent to kill...