Walsh v. State
| Citation | 195 Wis. 540,218 N.W. 714 |
| Parties | WALSH v. STATE. |
| Decision Date | 03 April 1928 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to review a judgment of the Circuit Court for Taylor County; G. N. Risjord, Circuit Judge. Affirmed.
John Walsh was convicted of murder in the second degree. The crime was committed October 7, 1926. Sentence was imposed March 29, 1927.
John Walsh lived in a sparsely settled portion of Taylor county, where most of the lands were cut over and grown up with bushy second growth. It was game country. In the afternoon of October 7, 1926, he had taken his rifle for the purpose of securing some fresh meat for the family larder. He proceeded along a road whose sides were largely overgrown with second growth trees and bushes. When he came opposite the place where Amandus Kauss was piling ground pine in the brush about 100 feet from the road, he shot at and killed Kauss.
The course of the bullet was traced by marks upon the tips of brush and the bark of a tree along the line which Walsh finally tacitly admitted was the true course of the fatal bullet. The overwhelming weight of the testimony establishes the fact that one standing in the road where Walsh stood when he shot could see a man standing where Kauss was when the shot was fired, and that he could tell that it was a human being.
Immediately after the shot was fired, the son of the deceased, who was helping his father gather the pine, called out. Walsh did not go to the boy who called, but ran up the road away from the place. He met a friend driving an automobile, told him that he had shot a partridge, got into the automobile, drove past the place where he fired the fatal shot, directed his friend's attention to the opposite side of the road as he passed the place of shooting by telling him that the partridge was on the opposite side of the road, spent the rest of the afternoon hunting, and at the close of the day returned with the friend and passed the place where the shot was fired. By that time a number of men had gathered at the place of the tragedy. Walsh there made statements with the purpose of shielding himself. Next day, after his arrest, he pointed out a place on the same side of the road on which the deceased was at which he said he stood when he shot the partridge. He also designated the place where the partridge was when the shot was fired. These two points establish a bullet line which would have made it impossible for the bullet to have hit the deceased. After he had been in jail some time, he stated that his story as to the shooting at the partridge was untrue, and said that, when he shot, he thought that the object at which he shot was a bear.
The defendant and the deceased had been political antagonists for some years in contests for local town offices. Deceased had always been the victor in these political contests. These men had also been antagonists in a physical encounter in which the deceased was likewise the victor. Defendant, when under the influence of liquor, had made threats that he would get the deceased some day--put a bullet through him.
The court submitted first and second degree murder and fourth degree manslaughter, and instructed the jury fully as to its duty to render a verdict of not guilty if no one of these degrees of homicide was established beyond reasonable doubt. The jury found the defendant guilty of murder in the second degree.
W. E. Wagener, of Sturgeon Bay, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and T. W. Andreson, Dist. Atty., and K. J. Urquhart, Sp. Asst. Dist. Atty., both of Medford, for the State.
[1] 1. The defendant contends that the evidence does not support a verdict of second degree murder. The evidence would sustain the finding that the defendant shot the deceased, knowing that he was shooting at a human being. This state of facts would have sustained a conviction of murder in the first degree, if the jury were satisfied beyond all reasonable doubt that the shooting was with premeditated design to effect death. If the jury had a reasonable doubt as to whether the shot was fired with that premeditated design, they were bound to give the defendant the benefit of the doubt and acquit him of first degree murder.
[2][3] Second degree murder is, among other things, distinguished from first degree murder by the absence of this premeditated design. Under the facts in this case, it is the presence or absence of this premeditated design that distinguishes first and second degree murder. The firing of a high-powered rifle at an object which may plainly be seen to be a man, if it results in the taking of life, is the killing...
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State v. Stevens
...Stats., for reversal. At the most, this was a bare technical error. State v. Kuick (1948), 252 Wis. 595, 32 N.W.2d 344; Walsh v. State (1928), 195 Wis. 540, 218 N.W. 714; Pulaski v. State (1964), 24 Wis.2d 450, 129 N.W.2d The defendant contends the state's Exhibit No. 1 consisting of substa......
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