State v. Hoyt

• Decision Date: 29 October 1963
• Citation: 21 Wis.2d 310,124 N.W.2d 47
• Parties: STATE of Wisconsin, Respondent, v. Dona Edna HOYT, Appellant.
• Court: Wisconsin Supreme Court

Page 47

124 N.W.2d 47

21 Wis.2d 310

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

Supreme Court of Wisconsin.

Oct. 29, 1963.

Max Raskin, Milwaukee, Herbert S. Bratt, Milwaukee, of counsel, for appellant.

George Thompson, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, William J. McCauley, Dist. Atty., Milwaukee County, Aladin A. DeBrozzo, Asst. Dist. Atty., Milwaukee, for respondent.

WILKIE, Justice.

Three major issues are presented on this appeal. They are:

1. Under all the circumstances of this case, was Mrs. Hoyt's confession, which was admitted into evidence, the voluntary product of a free and unconstrained will?

2. Was there a reasonable basis in the evidence to permit the trial court to submit a possible verdict of manslaughter, pursuant to sec. 940.05(1), Stats.?

3. Was certain information admitted into evidence in violation of the due process clause of the Fourteenth amendment, U.S.Const., because such information was obtained as a result of an illegal search and seizure?

The events leading up to the shooting on May 28, 1962, are undisputed. On that day the victim, a Milwaukee policeman, did not have to go to work. He spent the morning and part of the afternoon playing golf with a friend. In the late afternoon, while on a shopping trip, Mrs. Hoyt noted the friend's car parked outside a tavern. She went in and found her husband sitting at the bar with his golfing friend. After exchanging a few words, Mrs. Hoyt left the tavern and picked up their son from school, returned him to their home and then went back to the tavern to join her husband. At the tavern the deceased was grossly insulting to his wife. A patron remarked to him that he had a nice wife. He replied, in effect, that if he would like her, why didn't he take her. He remarked that when his wife was born they should have thrown her away and kept the afterbirth. He also made the remark that, in effect, the sorriest day of his life was the day of his marriage to the defendant.

The Hoyts left the tavern about 5:30, picked up some sandwiches and malted milks at a food stand near their home. They returned to their house and ate a light supper. Shortly thereafter the defendant went to her husband, who was lying on a couch in the living room. She sat next to him on the couch. She asked him whether or not they could live some other kind of life. According to her testimony, he replied, 'You can live any kind of life you want--I don't care.' Mrs. Hoyt testified that he said he would sell the house, take their son with him, and leave town. She told him, 'Don't talk so foolish.' In response to this remark, Mrs. Hoyt testified that the deceased said, 'Get my knife, cut me; get my gun, shoot me; I don't care.' Mrs. Hoyt responded by saying 'Don't talk so stupid.' The defendant testified that at this point the deceased knocked her off the couch to the floor with his legs. He leaned forward, put his hand upon her head and applied pressure, ostensibly to attempt to push her head down to the floor. When he released this pressure she then crawled up to the couch, leaned over him and suggested that he go to bed. He replied to this, 'Why don't you go to hell?' He put his hand on her face and pushed her backward. What happened then was described by the defendant as follows:

'Well, when he did this [pushed her backward] 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 leather 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!"

The events in the home occurred some time between 6:00 and 7:00 p. m. After the shooting Mrs. Hoyt brought her child in from outdoors, fed her dog, and then went to her parents' home in the city of Milwaukee. When the defendant entered, her mother felt that she looked as though she were in an extreme state of shock. When her mother asked her whether she had been fighting with her husband again, she was vague and unresponsive. She simply asked for a drink of something and her mother gave her beer. Shortly thereafter, her father returned to his home. When he saw his daughter, he testified that he thought she had had another serious argument with her husband and he planned to go to Mrs. Hoyt's home and attempt still another reconcilation. As he attempted to go on his mission, Mrs. Hoyt said to her mother, in effect, don't let him go, it's too late. Her father replied, in effect, that as long as there was some spark of life there was still hope. Mrs. Hoyt replied, 'There is no hope.' From the tone of her voice and her general manner, her parents concluded that her husband was dead. When they asked her if this were the case, she replied that she had shot him. Both parents testified that during this interchange she kept repeating over and over, in effect, 'He humiliated me so, he humiliated me so.'

The marriage of the victim and the defendant had been stormy. They were married in 1955. This was her second marriage. Within the year she had one child, a boy named Russell. The record reveals that during the three years immediately prior to the shooting, on numerous occasions the deceased subjected both Mrs. Hoyt and her son to physical abuse and psychological humiliation. The neighbors testified that on occasions they were awakened in the night by Mrs. Hoyt's pleas that her husband stop beating her. They would observe her on the following day, bearing the indelible marks of a physical beating. Other witnesses testified that upon occasion, if their small son, who was at the time four or five years old, would talk out of turn or would spill food at the table, his father would respond by striking him on the hands with eating utensils, or by striking him in the stomach with his fist with sufficient force to knock out the boy's breath. On one occasion a witness testified that the deceased beat his son over the head with a toy pistol when the child did something that offended him and that those present in the room had to pull the father off the small boy. Another witness testified that when, during the course of a ball game, the young boy failed to display the physical attributes of an adolescent or grown man, the father subjected him to psychological humiliation.

Mrs. Hoyt's parents testified that on numerous occasions their son-in-law had beaten his wife and child. She would come to them, telling them of these events and her father would tell the deceased that if he behaved this way again he would have to fight him as well. However, on each occasion, the parents would attempt to effect a reconciliation between Mrs. Hoyt and her husband. On at least one occasion during which the deceased had been beating his wife, the Milwaukee police were summoned. The testimony revealed that at this time the deceased's superior officer gave him a dressing down in the presence of his wife for such conduct. Testimony also revealed that the deceased was sexually indifferent toward his wife. Although Mrs. Hoyt desired another child as a means of shoring up the family relationship and as a playmate for their other child, when she would suggest that they have intercourse he would reply, in effect, 'What are you, some kind of animal?' or would ignore her request entirely.

After her daughter had told her of the shooting, Mrs. Hoyt's mother called the Milwaukee police department and told them that there had been an accident at Mrs. Hoyt's home, in the course of which Mrs. Hoyt had shot her husband. Upon receiving this call, the Milwaukee police immediately dispatched an ambulance squal to Mrs. Hoyt's home and...