State v. Stortecky

• Decision Date: 22 June 1956
• Citation: 273 Wis. 362,77 N.W.2d 721
• Parties: STATE of Wisconsin, Respondent, v. Steve STORTECKY, Appellant.
• Court: Wisconsin Supreme Court

Page 721

77 N.W.2d 721

273 Wis. 362

STATE of Wisconsin, Respondent, v. Steve STORTECKY, Appellant.

Supreme Court of Wisconsin.

June 22, 1956.

Frank L. Nikolay, Abbotsford, for appellant.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Raymond H. Scott, Dist. Atty., Taylor Co., Medford, John H. Bowers, Madison, of counsel, for respondent.

STEINLE, Justice.

On the evening of March 16, 1955 the defendant shot his wife, Julia Stortecky, in the leg and abdomen at their home on a farm in the town of Roosevelt in Taylor county. The wife died early on the following morning while on the operating table at the Victory Memorial Hospital at Stanley. Death was due to shock and loss of blood as a result of gunshot wound. Present at the time of the shooting was the nine year old son of the parties, Stanley Stortecky. Both father and son testified at the trial. The son was called as a witness for the state and the defendant testified in his own behalf.

The boy, Stanley, testified that when he returned home from school at about 4:30 p. m., on March 16, 1955, his mother and father were in the kitchen of the home. The parents were quarreling about the milk check,--the father indicating that he wished to cash it from then on. The boy greeted the father by kissing him. The mother dipped some chilli from a pot on the stove into a bowl, and placed the bowl on the kitchen table for the boy. While the boy was eating the food, the father pulled the chair in which he sat to the table, and the mother brought a bowl of chilli and placed it before the father. He tasted it,--indicated that it was hot,--and shoved the bowl off the table. The bowl struck the mother, and then struck the stove, and broke into pieces when it fell to the floor. The father then asked the boy whether he wanted his mother killed. The boy made no reply. A 22 Automatic Colt revolver lay on the table. The father picked up the gun and shot at the mother's feet several times as she moved around the room. Before firing the shots the father said to the mother 'I am going to make you dance.' The boy knew that the father had been drinking. While the mother was picking up a piece of the broken bowl, the father shot at it. He also fired shots toward the ceiling. The mother went to a corner of the room and said: 'Please, please, don't shoot me.' The father 'went to pull the trigger to shoot my mother in the middle, but the gun clicked and the bullet jammed.' The mother went to a chair and 'said her prayers so he would not shoot her.' The boy, at the request of the father, obtained some bullets from a shelf in the cupboard and gave them to the father. The father asked the mother for fifty cents. The mother gave him sixty cents. The father left the house (about 5:00 p. m.) and rode away in the car toward Lublin. The mother did chores in the barn, and later played checkers with the boy. Thereafter both watched a television program and while doing so the father returned (about 7:45 p. m.). In addressing the mother the father said 'you have spoiled my happiness, I will spoil yours,--you would not buy me any cigarettes.' He then kicked over the television set which was in the living room. He kicked the mother in the right leg. He shot at the mother's feet as she moved to the kitchen. When she sat down he shot and said 'I would rather shoot you and stay the rest of my life in jail.' Later he said 'I have an itching finger to pull the trigger.' Thereafter he shot her in the leg and in the middle (abdomen).

The defendant, when testifying in his own behalf, stated that on the morning of March 16, 1955, he had done chores on the farm. There had been no quarrel between his wife and himself at the time. He planned to assist in the digging of a well at a place away from the farm, but it was too cold for his associate and himself to undertake the work. He drove his car to Lublin, which is about 2 1/4 miles from his home, and arrived there at about 9:00 a. m. He spent his time until about 4:00 p. m., in a tavern, and during the course of that period drank a quantity of beer. He ate nothing. He arrived home at about 4:30 p. m. He lay down for about five minutes but suffered from heart burn and got up and went to the kitchen and sat in a chair. Stanley came home from school. The defendant decided to go outdoors with the gun. He loaded the gun but did not leave the house. He tasted the chilli which his wife served to him, and burned his mouth. He pushed the chilli bowl from the table and it struck the stove. He said 'it did not hit the wife, that he knew of.' He stated that he did not remember firing the gun while at home at that time. He said 'I was mad,--angry.' He argued with the wife and asked for money which she gave to him. The wife was in the barn doing chores when he left at 5:00 p. m. He said that he was not fit to help with the chores that night. He left the gun at home. At Lublin he had three bottles of beer at a tavern. He purchased some cigarettes and Tums at a grocery store. He drove home but does not remember the time when he arrived there. He picked up the gun and placed it on the table. The television set was in operation. He said that 'he told them to shut it off.' 'They didn't listen to me--I became angry--they drove me crazy--I don't like loud music--I got dazed--I jerked the aerial off--I kicked the television--I don't remember tipping it.' He then sat in a chair and tried to get a bullet out of the gun which had jammed while he was loading the gun before leaving for Lublin at 5:00 p. m. The wife was raving. After he got the bullet out he was careless. He thought the chamber was empty. He pulled the trigger,--a bullet was discharged--it went to his left. He said 'I told them to shut up and get the hell out of here.' For the purpose of scaring the wife he 'shot toward her foot, pointing the gun toward the floor.' The wife said "Ouch,' you hit me in the leg.' The defendant said 'The third shot went off, I thought she was going to fall toward me, I didn't know whether she was going to sit down or what--I don't remember what happened--I was going to grab her, and that is when the third shot went off--I don't know how it went off--I had the gun in my hand at the time--I had no intention of firing the gun--I don't know whether she hit my hand or what happened,--maybe she put her hand out and hit my hand, and I had my finger on the trigger.' The wife said "Ouch,' you have shot me in the side.'

It is undisputed that the husband and the boy assisted the wife into the car and then started for the home of the wife's brother, Leon Staniec, which is 3/4 of a mile or less from the Stortecky farm. There the defendant told Leon Staniec that he had shot his wife. The defendant, the wife and the boy transferred to Leon's car and Leon drove them to the hospital at Stanley, a distance of about 24 miles. Leon testified that enroute to the hospital the defendant told him that it was an accident, and also said 'to take it easy 'we have got a lot of time',' At the hospital the defendant expressed a willingness to donate blood for his wife. At the trial the boy testified that while he was with his father at the hospital, the father told him 'to tell the cops it was an accident,--that he was cleaning the gun and that it went off accidentally.' The sheriff testified that at the hospital he overheard the defendant instruct the son to 'tell the sheriff it was an accident or he might have to go to a reformatory.' The bullet which entered the abdomen of the deceased became lodged in the vertebral space between the fifth and sixth lumbar vertebra, having passed through soft tissue only. The death was a result of the wound caused thereby. The bullet which struck Mrs. Stortecky in the left leg entered and went through the muscular part at the calf of the leg. It does not appear from the evidence that this wound contributed to the death. A physician who attended Mrs. Stortecky at the hospital testified that she told him in the presence of the defendant that she was sitting in a chair when the gun went off, and that the defendant at the time when asked by the physician 'how close were you?' answered, 'about four feet.'

The defendant made certain admissions to investigating officers concerning the shooting. Included were statements to an interrogator of the State Crime Laboratory at Madison. Testimony was admitted at the trial regarding such statements.

The court submitted for the jury's consideration the questions of 'murder in the first degree' under section 340.02, Stats.; 'murder in the second degree' under section 340.03, Stats.; 'manslaughter in the fourth degree' under section 340.26, Stats., and 'not guilty.' The court instructed the jury with reference to 'excusable homicide' under the first specification of section 340.30, Stats. On behalf of the defendant request was made to submit questions to the jury relating to 'manslaughter in the first degree' under section 340.10, Stats.; 'manslaughter in the second degree' under section 340.14, Stats.; 'manslaughter in the third degree' under section 340.18, Stats. and 'negligent homicide' under section 340.271(3), Stats. The court ruled that the evidence did not in any reasonable view support a verdict of frist, second or third degree manslaughter or negligent homicide, as would require submission of such questions. The defendant's motion for a new trial was based in part on claimed error respecting the declination to submit the questions requested, and in permitting in evidence the admissions of the defendant obtained without prior advice to him of his right to counsel, and as to his right against self incrimination. Reversal is sought here for such alleged errors.

It was the duty of the court to accurately give to the jury the law of whatever degree of felonious homicide the evidence tended to prove, and no other. Terrill v. State, 1897, 95 Wis. 276, 290, 70 N.W. 356.

To justify a submittal of a lesser degree of...