Terrill v. State

• Decision Date: 23 February 1897
• Parties: TERRILL v. STATE.
• Court: Wisconsin Supreme Court

95 Wis. 276

70 N.W. 356

TERRILL

v.STATE.

Supreme Court of Wisconsin.

Feb. 23, 1897.

Error to circuit court, Iowa county; George Clementson, Judge.

Stephen Terrill was convicted of murder in the first degree, and brings error. Reversed.

The plaintiff in error was tried and convicted, in the circuit court of Iowa county, of the crime of murder in the first degree, upon an information charging him, in the usual form, with having killed and murdered one John Quirk, March 17, 1894. After sentence, he sued out a writ of error.

Marshall, J., dissenting.

The plaintiff in error was tried and convicted, in the circuitAT Spensley & McIlhon and P. A. Orton, for plaintiff in error.

W. H. Mylrea, Atty. Gen., for the State.

PINNEY, J.

The principal question to be determined is whether the circuit court, in its charge to the jury, in point of law fairly submitted the case to their consideration, and properly denied the several requests of the defendant's counsel to instruct the jury as to the law of manslaughter in the second, third, and fourth degrees. It was conceded that the defendant shot and killed Quirk at the time and place alleged in the information, and the contention at the trial was what degree of criminality, if any, on the part of the defendant, ensued in consequence of such killing. The circumstances were, in substance, that the defendant, the deceased, Stephen Tonkin, John Grace, and William Jackson, the bartender at the saloon of William Collins, where the killing occurred, had spent the entire night of March 16, 1894, and until 5 o'clock in the morning of the 17th, in drinking whisky and beer, and in playing cards for the drinks. They had drunk to excess, and none of them had had any sleep. Jackson, the bartender, then set up a saloon lunch, and they all partook, and still remained at the saloon, a room about 41 feet long and 14 feet wide. About half past 9 or 10 o'clock, William Clark, a young man about 17 or 18 years of age, and one William Smith, came into the saloon. The latter, having some green ribbon, gave pieces of it to Clark and to the defendant, which they pinned on their coats in honor of St. Patrick's day. Clark pulled the ribbon off the defendant's coat, at which he was somewhat offended, and after some angry words between them he threw Clark down, and a scuffle ensued between them. Jackson pulled the defendant off Clark, and he attacked Clark again, Jackson again interfering to pull him off. Clark testified, in substance, that the defendant had him down, and hurt his ear, kicked at him, and kicked him in the stomach, and some words ensued in relation to a claim for rent the defendant asserted. Thereupon Quirk, the deceased, asked the defendant what he was pitching on him (witness) for, and he and Quirk got to scuffling. That Quirk said to him: “What did he jump on me for? It was not my fault that my folks owed him rent;” and that “he had no right to pick on me for the rent as long as I did not owe it to him”; “and they started to scuffle again.” This occurred in the front part of the saloon. “And finally the deceased went back in the saloon to a card table, with Smith, and sat down. The deceased asked the defendant if he wanted to fight witness, and the defendant pulled off his coat, and said to witness, ‘Come out in the back yard with me.’ The deceased asked witness if he wanted to fight, and I said, ‘No, Jack; I am no match for him at all;’ and Jack said, ‘All right,’ and went into the back part of the saloon, with Smith, and sat down at a card table.” Another witness, one Minor, testified that he came into the saloon with one Ross, and the defendant and deceased were scuffling against the west wall, about five or six feet from the front door. Defendant's back was against the wall, and deceased was in front of him, and there were two between them; that he heard defendant say, just as he went in the door, “Hold on Jack; I don't want to scrap with you,” and the deceased (Jack) said, “All right,” and then Smith and Jack went back and sat down on a card table. Ross testified, in substance, the same: That when they went into the saloon the defendant and the deceased were scuffling. “There was one blow struck. The deceased struck the defendant a tolerably hard blow in the chest somewhere, and the defendant was hollering something,--that he didn't want to fight with him. The deceased did not say anything. They stopped him, and he went and sat down in the back end of the saloon.” Smith testified that in this struggle the deceased got mad, and struck the defendant in the face, and they had hold of each other, when he and Jackson interfered, and he and Grace advised the deceased not to have any quarrel, and got him to go and sit down. Jackson and Grace, in their testimony, confirm the statement of the previous witnesses that there had been quite a struggle between the defendant and the deceased before the latter went to the back part of the saloon with Smith, and during which the defendant insisted that he did not want to scrap or fight with him. Ross further testified that when the deceased sat down in the back part of the saloon the defendant came up to the side of the bar, by the cigar case, and was talking to somebody, and “he put his hand in his hip pocket, and took a revolver out, and turned it over in his hands, and then he said, ‘The first one that jumps me again will get the contents of this,’ and then he put it in his coat pocket; that is all I heard him say.” The witness Minor testified: That after the deceased sat down the defendant said, when he took out the revolver: “By God, the next man that jumps me, I'll fix him. I'll put seven holes in him; and it won't be the first, nor the second, nor the third, nor the fourth, nor the fifth.” That he (witness) walked out the door, and stayed there a minute, and then came in. Clark testified that the defendant said, as he took out the pistol: “The next man that jumps me, I will shoot; I would as lief shoot as look at him; that nobody was going to jump him;” and then witness went back in the room, and as he passed the deceased he said to him, “Don't jump Steve [defendant]; he has a revolver;” that he did not think the deceased heard him, and he (witness) “passed on out the back door, and in a little while came back again,” and spoke to Minor about the way the defendant had used him, and walked in a little further, almost to the end of the counter; that the defendant had come back to the bar, and the deceased (Jack) was sitting with Smith, and the defendant said, “Jack, come up here,” and the deceased said to Smith, “I believe that man addressed me.” The defendant said, “Jack, what did you jump me for?” and beckoned, as indicated by witness, and Jack again said, “I believe that man addressed me.” Smith then told him to sit down, and be quiet, and Jack said again, “I believe that man addressed me,” and he walked up, and the defendant said to him, “What did you jump on me for?” Then he (Jack) said: “It is against my principles to see a man jump on a boy. You ought to know better. You weight 180 pounds, and he is only a boy of 17. He is no match for you at all.” And he said, “No, but I am as heavy as you are,” and then they clinched. Jack struck him, and knocked him back by the window, and grabbed at him again. The defendant said, “I don't want to scrap with you; I don't mean you;” and then Grace jumped between them, and held them out, and they scuffled around, when the defendant jerked loose, and ran up with the revolver, and said, “Jack, what did you hit me for?” that just then Mrs. Collins, or her sister, came in the back way, and he heard somebody say, “For God's sake, Steve, don't!” that he started to look around, and saw the first shot fired; saw Grace dodge, and he saw who shot, and he then ran out. He testified: That when the deceased struck the defendant, Steve, by the counter, he did not fall, but staggered, and went back, and deceased went up and grabbed him by the arm, and the defendant said, “I don't mean you; I don't want to scrap with you;” and then Jackson, the bartender, came around, and Grace jumped between them. That he did not think that defendant would shoot. He had his foot out towards deceased, and the latter had hold of the defendant, and was following him up, and the defendant was backing up, and both of them were scuffling to get away from Grace; but whether the defendant jerked away, or Grace let him go, he could not say. That Jack had hold of defendant, and was following him up, and the defendant was backing up, and he said, “What did you hit me for?” and then he shot, and witness started to run, and as he got down the steps he heard three or four more shots fired. That it was a continuous scuffle from the time the deceased struck the defendant at the counter and knocked him back. The witness Minor gave substantially the same account of the transaction as Clark, and testified that when the defendant said to deceased at the counter, “You and I are about equal,” the deceased whirled around, and struck defendant along the side of his face, and he staggered back, grabbed the show case as he went, and deceased followed him, when the defendant stepped up or back in a window like (into a recess, with a bench about 22 inches high, and about 27 deep) with his left foot out, and said, “No, no, Jack; I don't mean it that way; I don't want to fight you;” but Jack seemed to be coming at him, and the defendant kicked him with the flat of his foot in the stomach. That Jack grabbed him, and they swung out. Grace ran out, and got in under them, and Jackson got hold in some way, and the four were scuffling around, and got over against the west wall. That it was all done quickly, and when the defendant made a motion as if to shoot, Jack ducked behind Grace, and when he raised up the defendant shot. That he thought Grace was shot, as he ducked down. Soon the defendant fired again, and Jack dropped down, and ran in, and...