Tendrup v. State
Decision Date | 20 June 1927 |
Citation | 214 N.W. 356,193 Wis. 482 |
Parties | TENDRUP v. STATE. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Polk County; W. R. Foley, Judge.
Hans Tendrup was convicted of murder in the first degree, and he brings error. Affirmed.--[By the Editorial Staff.]
The plaintiff in error, hereafter referred to as the defendant, sued out a writ of error to review the proceedings resulting in his conviction of murder in the first degree, and sentence to life imprisonment in the state's prison at Waupun.W. T. Doar, of New Richmond, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Howard D. Blanding, Dist. Atty., of St. Croix Falls, for the State.
The facts, briefly stated, are that defendant, a young man of Polk county, with a high school education, then married, became infatuated with a young lady school teacher. The couple cohabited, and the young woman became pregnant as a result. While in that condition her love for defendant seemed to cool, and defendant feared that she was becoming enamored of another young man in the neighborhood. The defendant, learning that the young woman was attending a social affair at the home of a neighbor, went to the place, sought out the woman, and had a conversation with her which confirmed his fears. He left the social in his automobile, and went to the home of his parents, some miles distant. There he procured a magazine rifle, loaded it with several cartridges, and then returned to the social. He again sought the young woman, found her, and tried to persuade her to accompany him. Upon her refusal, he took the rifle from the automobile, and fired several shots into her body, resulting in her immediate death. He then turned the gun on himself, and inflicted a dangerous wound. He then placed the body of his victim in the auto, and drove some distance, when he became faint and stopped. He was apprehended and arrested. He told an officer that he had contemplated killing the woman by chloroform and himself committing suicide in the same way. To another officer he said he loved the young woman, and was determined that no one else should have her.
Counsel for appellant contends that the court erred in not granting defendant a continuance of his case on the ground of illness of his attorney. Defendant had employed Mr. Doar to represent him. Mr. Doar was unable, because of illness, to go on with the case when it was called, and affidavits were presented to show the fact on motion for a continuance. The court denied the motion, and defendant employed Mr. Spencer Haven, an able and reputable attorney, who represented him at the trial. Mr. Forsythe, a lawyer employed by Mr. Doar, also appeared for the defense. It did not appear that such counsel were unable to properly prepare the cause for trial; that they were unable to secure any desired witness, nor that defendant was denied a fair and impartial trial by reason of the denial of a continuance. The case was called November 2d; the motion was made and denied on that day; and then the case was set for trial on November 16th.
[1][2][3] While it is desirable that the defendant, in a capital case, have the services of an attorney of his choice, a motion for continuance is addressed to the discretion of the trial court, and, unless a denial of the motion results in a denial of a fair and impartial trial, such denial will not be grounds for reversal of the verdict of the jury. Till v. State, 172 Wis. 266, 177 N. W. 589;Mainville v. State, 173 Wis. 12, 179 N. W. 764. We discover no reversible error in such denial of the motion for continuance.
[4][5][6][7] The defense contended that the defendant was insane at the time of the act. It is claimed that the court erred in admitting the testimony of two physicians as experts. The doctors had listened to practically all the testimony of the defendant, and that which they had not heard was read to them. The doctors were asked whether, in their opinion, the defendant was sane or insane at the time of the killing, basing their answers on such testimony. The court carefully confined the witnesses to an expression of opinion based on such testimony of the defendant, and it was so given. Defense claims that the testimony of such witnesses usurped the functions of the jury. That physicians are qualified as experts to give testimony in such cases is generally recognized in the law. 22 Corp. Jur. p. 543, § 640; P. 661, § 758; 11 Ruling Case Law, p. 600, § 27. That a physician may base his opinion on a given state of facts in a hypothetical question, or upon uncontradicted testimony which he has heard, has been held by this court. Cornell v. State, 104 Wis. 527, 80 N. W. 745;Duthey v. State, 131 Wis. 178, 188, 111 N. W. 222, 10 L. R. A. (N. S.) 1032. The opinion of an expert upon an ultimate fact to be determined by the jury is admissible in evidence under proper questions. Daley v. Milwaukee, 103 Wis. 588, 79...
To continue reading
Request your trial-
Galloway v. State
...denial of a continuance was a proper exercise of its discretion. State v. Whitney (1945), 247 Wis. 112, 18 N.W.2d 705; Tendrup v. State (1927), 193 Wis. 482, 214 N.W. 356. A new trial also is sought because the prosecuting attorney implied that Mr. Galloway may have been involved with narco......
-
Page v. American Family Mut. Ins. Co.
...be set aside only if there is evidence of an abuse of discretion. Estate of Hatten (1940), 233 Wis. 256, 289 N.W. 630; Tendrup v. State (1927), 193 Wis. 482, 214 N.W. 356; Druska v. Western Wisconsin Telephone Co. (1922), 177 Wis. 621, 189 N.W. On motions after verdict and in denying the mo......
-
Milbauer v. Transport Emp. Mut. Benefit Society
...could base his opinion upon undisputed testimony given in the trial which was heard by him or which was read to him. Tendrup v. State (1927), 193 Wis. 482, 214 N.W. 356; Duthey v. State (1907), 131 Wis. 178, 111 N.W. Qualified expert witnesses are not confined in their testimony to facts wh......
-
O'Neil v. State
...but at all events it does not vitiate or impair the verdict. Niezorawski v. State, 131 Wis. 166, 178, 111 N.W. 250;Tendrup v. State, 193 Wis. 482, 486, 214 N.W. 356;Ruffalo v. State, 196 Wis. 446, 220 N.W. 190. [9][10][11] It is also contended on behalf of O'Neil (1) that the court erred in......