State v. Hamilton
| Decision Date | 09 March 1920 |
| Citation | 176 N.W. 773,171 Wis. 203 |
| Parties | STATE v. HAMILTON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Racine County; E. B. Belden, Judge.
George E. Hamilton was convicted of murder in the first degree, and he brings error. Reversed and remanded.
The plaintiff was charged in the information with murder in the first degree of Edward Warner at Racine, Wis., on December 15, 1917. There were no actual eyewitnesses to the murder, which took place about 7:15 p. m. in a Standard Oil filling station at the intersection of Seventh and Main streets in the city of Racine. A 14 year old boy, named Mervil Peil, who was on the sidewalk of the street opposite the oil station, saw the murderer as he ran from the oil station to the sidewalk in front of the station, then north until he disappeared. The boy picked out Hamilton as “the man who resembled him most” from about a half a dozen other men at the police station that evening. The identification was not positive, the boy asserting that “his (Hamilton's) height was about the same, and his dress, and the build of the man.” The boy also stated that he could see how the man was dressed. “He had a short knee coat on, and a flat-topped cap with rounded sides, and he had his coat collar turned up and his earlaps down.”
The state also introduced testimony at the trial to show that a fellow prisoner of Hamilton's heard him praying at night in the jail and caught the words: It was also proved that Hamilton had at one time been known as Eli J. Long, and that he had been convicted in Michigan on July 2, 1908, of attempting to commit the crime of murder. Hamilton swears that on the evening of December 15, 1917, he left his home and rode on a jitney bus to the Racine Hotel; that he went directly from there to the post office; that while in the post office a boy crowded ahead of him in the line and told the postmaster of the firing of two shots at the filling station and another as the man came out. The boy was identified as Mervil Peil by defendant, and Hamilton claims that he first heard of the shooting from the conversation between this boy and the man at the post office window.
The case was submitted to the jury. The jury returned a verdict of guilty. On April 26, 1918, a motion for arrest of judgment and a new trial was made upon affidavits of defendant and his attorney to the effect that counsel had not learned until after the trial of the facts that the turnkey at the jail where defendant was confined and two inmates had personal knowledge that defendant's cell door was closed on the night when the witness Larsen testified that it was open, and that he heard the declarations of the defendant while praying. The court overruled this motion for want of a proper showing and of diligence. On May 3, 1919, a motion was presented to the trial court in defendant's behalf for a new trial upon the grounds of newly discovered evidence, and that upon the whole record the evidence was not sufficient to sustain a conviction and imprisonment of defendant. The alleged newly discovered evidence is to the effect that Gertrude Gressing, aged 20 years, and Marion Gressing, an older sister, were at the time of the shooting at the oil station walking north on the opposite side from the station on East Main street; that immediately after the shooting they saw a man come out of the oil station and walk westerly; that they observed him and the garments he wore; that on the same evening about 10 o'clock, at the request of the police, they took the same position on the street from where they had witnessed the man leave the oil station after the shooting, and watched a man accompanied by the police walk from the oil station in the same direction they had seen the man go immediately after the shooting; that in their opinion the man accompanied by the police was not the man they saw immediately after the shooting. The man “accompanied by the police” was Hamilton, the defendant.
Defendant's counsel, Ahrens, states that he did not know of this evidence until April 5, 1919. It appears that the Racine newspapers referred to and published the fact that the Gressing sisters heard the shooting and saw the man as related above, and that the public generally heard of this fact and generally discussed it. The trial court held that the facts and circumstances disclosed by the affidavits in support of the motion and the facts disclosed on the trial did not show due diligence, and that, if this alleged newly discovered evidence were produced and submitted to the jury in conection with the evidence in the record, there is no reasonable probability that a different verdict would result; also that the court was of the opinion that justice had been done in the case.
The motion was denied.
The plaintiff in error, herein called the defendant, urges that the court erred in: (1) Permitting the state to introduce in evidence the case published in 154 N. W. 567, concerning defendant's discharge by a decision of the Supreme Court of Michigan from a conviction on a charge of felony, the defendant having admitted this in open court; (2) receiving hearsay evidence of two police officers in testifying to the description Mervil Peil gave them at the police station after seeing defendant and others in the station as the man whose appearance and clothing looked like those of the man he had seen come out of the oil house immediately after the shooting; (3) refusing to grant a new trial on the grounds of newly discovered evidence. The defendant also urges that justice has not been done in adjudging him guilty because the evidence in the case does not support the conviction.
Wallace Ingalls, of Racine, for plaintiff in error.
John J. Blaine, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and J. C. Wilberschied, Asst. Dist. Atty., of Racine, for the State.
SIEBECKER, J. (after stating the facts as above).
[1] The introduction of the case as printed in 154 N. W. 567, pertaining to the decision of the Supreme Court of Michigan discharging the defendant from imprisonment for a conviction of a felony, was improper, since such conviction was admitted on the trial....
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