State v. Payne
| Decision Date | 05 November 1929 |
| Citation | 227 N.W. 258,199 Wis. 615 |
| Parties | STATE v. PAYNE. |
| Court | Wisconsin Supreme Court |
Error to review a judgment of the Municipal Court of Milwaukee County; George A. Shaughnessy, Judge. Affirmed.
Louis Marvin Payne, the plaintiff in error, hereinafter called the defendant, was adjudged guilty of murder in the second degree on the 26th day of October, 1928, for having on the 31st day of August, 1928, shot and killed his wife, Frances Payne. He brings the case here upon writ of error to review such judgment and sentence.
On and before the 31st day of August, 1928, Louis Marvin Payne, with his wife, Frances Payne, and three children, lived in a very modest habitation, consisting of three rooms, a bedroom, living room, and kitchen, together with a pantry, in the city of Milwaukee. A short time prior to August 31st Mrs. Payne's brother, together with two other men, came to Milwaukee from Georgia, the home state of the Paynes. They were taken in by the Paynes, and furnished room and board. The three of them slept in the bed in the bedroom, and the Payne family slept on cots and on the floors in the other rooms. One of these roomers was Fate Palfray by name. He with the others had secured work shortly after their arrival in Milwaukee, but a few days prior to August 31st Palfray became incapacitated for work because of an injured toe.
On the morning of August 31st all members of the household arose and had their breakfast, except Palfray. The two young men left for their work before 7 o'clock. Shortly thereafter the children went out to play, and Payne himself departed, with the intention of going to Wauwatosa to solicit funds for the Volunteers of America, which was his customary occupation. He went to the residence of an associate in his work, who was to accompany him on his trip. For some reason, however, his associate concluded that he could not go to Wauwatosa with him on that day, and Payne abandoned the trip. He returned to his house, arriving there about 8 o'clock. Upon entering the house, he saw nothing of his wife nor any one else, and went to the door of the bedroom occupied by these three young men, where he saw his wife in bed with Fate Palfray. Palfray was in bed, dressed only in his B. V. D.'s. Payne's wife was lying beside him fully dressed, with blanket drawn up over both of them. Payne went to the pantry, a distance of 8 or 10 feet, took his revolver from a shelf where he customarily kept it, and returned to the bedroom door. He leveled the revolver at Palfray, and snapped it once or twice, but it failed to discharge. Palfray and Payne's wife both jumped out of bed. Palfray, either by design or accident, secured a position behind Mrs. Palfray, so that she protected him. Payne continued to snap his revolver, and finally it discharged, the bullet striking Mrs. Payne and killing her. Palfray then grappled with Payne, and their ensuing tussle took them out into the yard, where the revolver again went off; the bullet striking Palfray and wounding him.
Payne was immediately taken into custody, and shortly thereafter was questioned by the police officers. The statement made by him at that time was introduced in evidence, from which we excerpt the following. He was questioned thus:
“Q. Was he rooming at your place at 298 Hanover street this morning? A. Yes, sir.
Q. And what happened that you shot him? A. Well I came in, caught him and wife in bed, and I shot them both.
Q. Did you have any previous reasons to suspect any intimacy between your wife and him? A. No, sir.
Q. How did you happen to come in this morning and find them there? A. Started out to work, and I decided that I would come back to my home, and I was going to carry her to the store for groceries, as it was too far for her to walk.
Q. And then what happened? A. I shot them both.
Q. When you went into your house, what did you find there? A. I found my wife in the bed with this fellow.
Q. Were they undressed? A. He was; she was not.
Q. Did you say anything to them? A. No, sir; I didn't; went and got my gun.
Q. And who did you shoot first? A. Shot her first.
Q. And did Palfray try to take the gun away from you after you shot your wife? A. Me and him scuffled over the gun; he was holding my hand, and I got my hand loose and shot him in the stomach.
Q. And that was the only reason you had for shooting your wife and this boarder was because she was in bed with this boarder? A. If that ain't enough, there ain't nothing enough, Captain.
Q. You think you were justified in doing it? A. Yes, sir.
Q. And if the same emergency would arise, would you do it over again? A. Yes, sir; I would.
Q. Now that you know what the penalty would be? A. If I knew that I would hang to-morrow, just like that, I would do it, Captain. (Snaps fingers.)
Q. You are satisfied that it was your duty to do that? A. Yes, sir.”
He was also questioned at the district attorney's office, and in his statement made there we find the following:
“Q. When you saw your wife, you immediately went into the pantry, got the revolver? A. Yes.
Q. You came back to the bedroom; when you got there, where was your wife? A. She started to get out of the bed; Palfray jumped behind her, right on the bed; he had his arms around her to keep me from shooting him; so after I shot her he jumped up.
Q. You opened fire on her first? A. Yes.
Q. Where did you strike her? A. Below the heart, I don't know.
Q. Left side of her breast? A. Yes.
Q. Then what happened to her when you shot her? A. She lay across the bed.
Q. Did she say anything at all? A. No.
Q. Not a word? A. No.
Q. Did you say anything? A. No, sir.
Q. When you shot her, what happened to Palfray? A. I tried to shoot him; the gun skipped.
Q. Why did you shoot Palfray? A. I thought it was justifiable, in bed with my wife.
Q. Why did you shoot your wife? A. Because she was in bed with him.
Q. You shot her deliberately, shot her deliberately, aiming the revolver at her, and shot her because she was in bed there? A. She had no business being in bed with another man.
Q. Now you shot to kill? A. I suppose I did; I killed her.
Q. You shot also to kill the man Palfray? A. I suppose; if he ain't dead, he ought to be.
Q. Now, you are not sorry that you shot and killed your wife? A. No, sir; I am not.
Q. And you are not sorry you shot Palfray? A. No, sir.
Q. Do you hope that he will die? A. Well, I think a man like that, try to wreck another man's home, should die, one man that try to wreck another man's home, he ain't fit to live.
Q. What about your wife; don't you think you ought to have asked her for an explanation before you shot her, or an explanation from the man; don't you think it would have been advisable? A. It might be in some cases; I don't know whether it would be in this case.
Q. Have you no regrets? A. No, sir; I am not sorry one minute; only thing I am sorry for are my children.
Q. You are not sorry for yourself? A. No, sir.”
Upon the trial he testified as follows:
The jury found the defendant guilty of murder in the second degree, upon which he was sentenced to imprisonment in the state prison for 14 years.L. A. Schweichler and Rubin & Zabel, all of Milwaukee, for plaintiff in error.
John W. Reynolds, Atty. Gen., and Geo. A. Bowman, Dist. Atty., and Geo. B. Skogmo and Louis S. Wiener, Asst. Dist. Attys., all of Milwaukee, for the State.
It is earnestly contended that the killing was justifiable, and that there is no evidence to support a verdict finding the defendant guilty of murder or manslaughter in any degree. The court did submit to the jury the question of whether the killing was justifiable homicide. The brief dwells at great length upon alleged errors committed by the court in submitting this question, and in refusing to give requested instructions with reference thereto.
We have great doubt as to whether the evidence justified or required the submission of this question, but, in view of the fact that we find no error in the manner of its submission, we will not undertake a review of the evidence, to determine whether it should have been submitted. In submitting this question the court charged:
“If, from all the facts and circumstances in the case, the defendant had reasonable ground to apprehend a design on the part of Fate Palfray to commit a felony upon his wife by force and against her will, or to do her or the defendant some great personal injury, and the defendant had reasonable cause for believing that there was imminent danger of such design being accomplished, he had a right to act efficiently upon such reasonable apprehension and employ what to him at the time honestly seemed necessary to that end, even to taking of the life of Fate Palfray.”
This instruction is criticized because it eliminates all felonies other than “by force and against her will.” By numerous written requests submitted by the defendant to the court, it was urged to charge the jury, in effect, that the defendant was justified in the shooting in order to prevent the commission of the crime of adultery. Such a rule would authorize the killing by a husband of his wife and her paramour at any time when he apprehended them in an adulterous act. As will hereinafter be shown, this rule, which obtained among ancient peoples, has been thoroughly repudiated by the Anglo-Saxon race, and it has never been held by any English-speaking court that an outraged husband may take the law into his own hands and slay his wife or her paramour under such circumstances, unless it be in the state of Texas, where the statutes declare this to be justifiable homicide.
At common law the prevention of crime is a recognized excuse for the taking of human life. ...
To continue reading
Request your trial
-
State v. Lord
...v. State, 174 Ala. 101, 57 So. 445; McPhee v. Lawrence, 123 Me. 264, 122 A. 675; Higgins v. Los Angeles G. & E. Co., supra; State v. Payne, 199 Wis. 615, 227 N.W. 258; Annawan Mills v. Mangene, 237 Mass. 451, 130 N.E. 77; Krauss v. Cope, 180 Mass. 22, 61 N.E. 220; State v. Stover, 64 W.Va. ......
-
State v. Anderson, 2006 WI 77 (Wis. 6/29/2006)
...danger of overemphasis of the confession relative to testimony given from the witness stand."63 ¶ 105 Similarly, in State v. Payne, 199 Wis. 615, 629-30, 227 N.W. 258 (1929), the court warned of the risk of undue emphasis on one side's case that might result if testimony of one side but not......
-
State v. Anderson
...danger of overemphasis of the confession relative to testimony given from the witness stand."63 ¶ 105 Similarly, in State v. Payne, 199 Wis. 615, 629-30, 227 N.W. 258 (1929), the court warned of the risk of undue emphasis on one side's case that might result if testimony of one side but not......
-
People v. Caldwell
...allow the jury to take a written confession with them during their deliberations (State v. Lord, 42 N.M. 638, 84 P.2d 80; Payne v. State, 199 Wis. 615, 227 N.W. 258); and another has equated a signed confession, portions of which were inadmissible, with a deposition. (State v. Crighton, 97 ......