State v. Hoyt

• Decision Date: 05 June 1964
• Citation: 21 Wis.2d 284,128 N.W.2d 645
• Parties: STATE of Wisconsin, Respondent, v. Dona Edna HOYT, Appellant.
• Court: Wisconsin Supreme Court

Page 645

128 N.W.2d 645

21 Wis.2d 284

STATE of Wisconsin, Respondent, v. Dona Edna HOYT, Appellant.

Supreme Court of Wisconsin.

June 5, 1964.

Philip L. Padden, Herbert S. Bratt, Milwaukee, for appellant.

George Thompson, Atty. Gen., William A. Platz, Robert D. Martinson, Asst. Attys. Gen., Madison, for respondent.

PER CURIAM (on rehearing).

The opinion of the court, filed October 29, 1963, is hereby withdrawn. The following opinion is substituted in its place. ²

William Hoyt died at his home between six and seven p. m., May 28, 1962. He had been shot by his own revolver, then in the hand of his wife, Dona Hoyt. She was charged with second-degree murder, and convicted.

At the trial, Mrs. Hoyt requested that the jury be instructed with respect to manslaughter and that an appropriate form of verdict be submitted. She objected to receipt in evidence of a written confession. She objected to testimony of police officers of their observations within her home after the shooting. She contends that the court erred in refusing to submit a manslaughter verdict, in permitting the confession to go before the jury, and in permitting the officers to testify about what they observed in her home.

1. Submission of a manslaughter verdict. Mrs. Hoyt was 29 years of age. Her husband was 6 feet 3 1/2 inches tall and weighed 235 pounds. Dona was 5 feet 6 1/2 feet tall and weighed 130 pounds. They had been married for eight years, and had one son, Russell, aged 7. Mrs. Hoyt testified to an unhappy married life, and to frequent incidents where Mr. Hoyt beat or choked her and humiliated her in various ways. A number of these incidents of violence and humiliation were corroborated or described by apparently disinterested witnesses as well as Mrs. Hoyt's parents. On the afternoon preceding the killing, she had gone to a tavern to pick up Mr. Hoyt, and he said several things to her and to others present which need not be repeated here, but were humiliating and insulting.

They returned to their home, and the events which occurred there are described only by Mrs. Hoyt. After eating something, both were in the living room. Mr. Hoyt was lying on the davenport, and Mrs. Hoyt sat on the edge of it to talk to him. She asked him whether they couldn't live some other kind of life. He said she could live any kind she wanted, and that he would sell the house, take their son and leave town. He pushed her off the davenport with his legs. Then he got up and pushed her head toward the floor with his hand. Then he stretched out on the floor. She got on her knees, bending over him, and spoke to him. He put his hand on her face and pushed her back so that she fell.

She testified:

'A I got on my knees to him, just bending over him and I said 'Bill, why don't you go to bed now,' I said. And he said 'Why don't you go to Hell,' and he put his hand on my face and pushed me back.

'Well, when he did this I just lost my balance and I ended up away from him, you know, I just fell this way. And then I got up and walked out into the hall and I just wanted to get out of the room and I just felt like I wasn't there--well, it was real foggy, like you can't even look out of the side of your eyes, or something. And I walked into the hall, and, well, I just was afraid to be in there, I didn't know what to do. I couldn't go in the kitchen because he was there and so he could see, and I was afraid he would come after me if I went in the kitchen. And when I was thinking this--I was already past this bedroom, and so I turned into Rusty's room--it was on the side of me and I just turned in and I walked in Rusty's room and I was standing there and I was just staring straight ahead as I walked in. And I saw the door open, it has a mirror on it, and I took my hand and I was going to close the door, and I looked up and my eyes saw this gun. I don't feel like I even reached for it, it just seemed like I was drew to touch that gun and--I mean, in a fog, I wasn't thinking, I wasn't planning, I wasn't doing anything.

'I just reached this gun and I had it in my hands and some leathering covering of some sort fell down and I was looking at this gun in my hands, and I was just foggy and I was staring at this gun. And I walked out two steps, I think it was, and I'm out of this room and I was in the hall, and as soon as I realized I was in the hall and I had that gun I quick put it in back of me. And I heard a little noise outside and I walked, turned,--the hall is so small--I turned to the living room and Bill could see me and I was standing with my hands behind my back. And he said 'Have you got a knife--cut me. You got my gun?' And when he said 'gun' I just didn't say anything, and he was coming at me and I put the gun in front and he laid back down and he said 'Shoot, it's not loaded--shoot.'

'And I just was froze there, and I was standing there and he said 'What's the matter, what's the matter now,' he said 'come on, Bitch,' he said 'come on,' he said, 'shoot,' he said 'come on, you bitch, shoot.' And I said 'quiet,' and he said 'shoot, I don't care, I don't care about you, I don't care about kids, I don't care about anything, shoot, shoot, shoot, shoot, shoot!' And his face came at me and it was all red and contorted and I stepped back and it shot, and it was dull, and I thought 'What is that?' and I saw Bill, and at first it looked like he was mad again, but then his face crumpled and I laid down and I said 'Bill, Bill, Oh, Bill!"

After the shooting she called the police, but hung up before saying anything, apparently because she didn't want her parents and son to learn about it that way. She took her son, who had been outside, and drove to her parents' home. Her mother testified that Mrs. Hoyt came to the door and asked her to promise to take care of Russell; that she must have been in a complete state of shock, staring, with her eyes wide open. The parents surmised there must have been another quarrel, but had some difficulty in finding out what had happened. When they finally learned that Mr. Hoyt had been shot, Mrs. Hoyt indicated she wanted to go back and shoot herself. She did not remember pulling the trigger, but remembered having the gun in her hand and shaking, and Mr. Hoyt telling her to go ahead and shoot. She told her mother of the argument and humiliation that afternoon in the tavern.

Mrs. Hoyt's parents called the police.

In not charging Mrs. Hoyt with first-degree murder, the state apparently conceded that her state of mind was such that she lacked 'intent to kill' (mental purpose to take the life of another). ³ She was guilty of second-degree murder if she caused her husband's death 'by conduct * * * evincing a depraved mind, regardless of human life'. ⁴ She contends that, under the evidence, a jury could have entertained a reasonable doubt but that she caused his death 'Without intent to kill and while in the heat of passion', the specification for one type of manslaughter. ⁵

'* * * That which will constitute 'the heat of passion' which will reduce what would otherwise be murder to manslaughter 'is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.' State v. Stortecky, 1956, 273 Wis. 362, 372, 77 N.W.2d 721, 726. It has been said that "the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror." 21 Am. & Eng. Ency. of Law 2d Edition, 177, quoted in Johnson v. State, 1906, 129 Wis. 146, 159, 108 N.W. 55, 5 L.R.A.,N.S., 809.' ⁶

We have recently said:

'Thus, with respect to provocation, the test applied is not the subjective one of whether it was sufficient to produce in defendant such passion as to cause him to kill without intent to do so. Rather it is the objective one of whether the provocation would have caused such state of mind in persons ordinarily constituted. * * *' ⁷

If Mrs. Hoyt's testimony be believed, it could readily be found that her acts resulted from an emotional or mental disturbance produced by her husband's provocative conduct. In terms of the standards for heat-of-passion manslaughter, the question would remain whether the provocation offered would be sufficient in character and degree to cause the same result in an ordinarily-constituted person.

If we look solely at the action of Mr. Hoyt in the last few minutes before the shooting, it seems clear that such actions would not be sufficient to produce the required degree of disturbance in an ordinarily-constituted person not previously subjected to the treatment visited upon Mrs. Hoyt by her husband and disclosed by the record. On the other hand, it seems reasonable that the treatment to which Mrs. Hoyt had been subjected for a long period of time, and the public humiliation of her within the previous hour would have a cumulative effect upon any ordinary person so that the provocation just before the shooting would be greatly magnified.

Under the peculiar circumstances of this case, we conclude that a jury might properly have found her guilty of heat of passion manslaughter and entertained a reasonable doubt of her guilt of second-degree murder, and that the manslaughter verdict should have been submitted.

2. The written confession. A three-page statement, written and signed by Dona Hoyt, was presented by the state. The court heard testimony, in the absence of the jury, concerning the circumstances under which it was...