Weisenbach v. State

• Decision Date: 16 February 1909
• Citation: 119 N.W. 843,138 Wis. 152
• Parties: WEISENBACH v. STATE.
• Court: Wisconsin Supreme Court

138 Wis. 152

119 N.W. 843

WEISENBACH

v.STATE.

Supreme Court of Wisconsin.

Feb. 16, 1909.

Syllabus by the Judge.

If two persons assault another with design to feloniously take that other's life, and the claim of the prosecution is that such persons acted pursuant to a conspiracy, having for its purpose the offense attempted in aid of a further general purpose, and only one is placed on trial who denies being one of the two, and the identity of the other is established--all the circumstances of the conspiracy, and the various steps in its consummation tending to show motive for participation therein of the one on trial and to identify him as having been the participant and the general intent of such participation--may properly be given in evidence.

In the situation mentioned it is proper to state to the jury in opening the case on the part of the prosecution all facts the state expects to prove, as to the existence of the conspiracy, the connection of the accused therewith, particularly at the time of the offense, and to offer all legitimate evidence showing such circumstances, so far as they tend to establish guilt of the accused.

In such a situation, the fact that one participant has not been apprehended, does not militate, upon the trial of the other, showing all the facts regarding the absent one bearing on the criminality of such other.

If a person, about to be apprehended as guilty of having committed a criminal offense, resists arrest, it may properly be established upon his trial as bearing on the probability of his guilt and given such weight by the jury, as they may think it is entitled to under all circumstances.

If an attempt be made to arrest a person upon a charge of his having committed a criminal offense, and he successfully, by threats or intimidation, prevents being apprehended, and is informed that he will be visited later by a force sufficient to secure his submission, and he evinces a disposition to resist in such event, and upon a new attempt the officers are resisted by such person and a comrade, acting in concert with him, and to the extent of a claimed design to take the lives of such officers--proof of the previous occurrence and threats are legitimate as to the intent of such resistance.

If a person is charged with a homicidal offense of a high degree, including lesser degrees, the case need not be submitted to the jury in any aspect other than such as there is evidence in some reasonable view to sustain.

In the trial of a person accused of having committed a homicidal offense of a character including a lesser offense, the court should instruct the jury as to every offense included in the charge established in any reasonable view by the evidence.

In the circumstances last mentioned, failure to charge as to any particular grade of offense, no proper request being submitted therefor, is not harmful error.

In such circumstances, an instruction requiring conviction of the higher degree or acquittal, is favorable rather than harmful to the accused.

A requested instruction, embodying a correct rule of law but not applicable to the facts of the case, may properly be refused.

In submitting a cause to a jury involving a charge of assault with a dangerous weapon with felonious intent to take human life it is proper to instruct the jury that a man is presumed to intend the natural, probable and usual consequences of his act, that being given so as to indicate it is not conclusive; only an evidentiary circumstance, to be considered in connection with the legal presumption of innocence and all the evidence bearing on the issue.

The fact that, in the given case, the reasonably to be expected result, as the usual and probable consequences of the act charged, did not occur, does not preclude giving to the jury the rule as to the inference of fact arising from the one deliberate act.

Error to Circuit Court, Chippewa County; A. J. Vinje, Judge.

Valentine Weisenbach was convicted of assault with intent to murder, and brings error. Affirmed.

Plaintiff in error was duly convicted of the crime of assault with intent to murder. Exceptions were saved requisite to present for review the questions discussed in the opinion. The facts are there indicated, so far as necessary to an understanding of such questions.W. H. Stafford, for plaintiff in error.

F. L. Gilbert, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and F. L. McNamara, Dist. Atty. of Sawyer County, for the State.

MARSHALL, J.

The charge was that the accused, upon a particular day and at a particular place named, while armed with a deadly weapon, to-wit: a rifle, feloniously assaulted five persons, named, with intent to murder them.

The general claim of the state was this: John Dietz resided on the banks of the Thornapple river in Sawyer county, Wis., some 60 miles by the nearest usable traveled way from the railroad station at Hayward, the county seat, and in a wild and substantially uninhabited country; miles beyond the termini of public highways, and reached only by traveling through forests on rough roads, used principally by lumbermen, and passable, only with some difficulty, at the season of the year when the occurrence in question happened. There had occurred difficulties between him and a lumber company respecting conflicting claims as to property rights, leading to the commencement of actions, criminal and civil, against him, and his defying the officers of the law, refusing to submit to the jurisdiction of the courts, and insisting upon vindicating his claims by force to the extent of standing off officers of the law sent, in due course, with papers to serve on him and warrants for his apprehension, using deadly weapons for that purpose and evincing a determination to use them to kill rather than submit to the laws of the state as administered by its courts. Apprehending repetition of an expedition in force to arrest him, he associated the accused with him for the purpose of resisting the officers, and to the extent of killing them. On the 7th day of May, 1904, William Giblin and William Elliot, two deputy sheriffs of Sawyer county, departed from Hayward on an expedition to arrest Dietz, having a bench warrant, because of a previous defiance of the authority of the court, and a criminal warrant for a serious criminal offense in connection with the matter referred to. The first day they reached a stopping place, some 46 miles from the starting point, leaving seventeen miles or thereabouts to be traversed before reaching the Dietz home, the way being over substantially unfrequented roads, through forests and rough uninhabited country, as before indicated. The next day they resumed the journey, accompanied by two employés of the lumber company with which Dietz was at war, and an employé of the farmer with whom they passed the night. The destination for the day was the lumber company's camp, near the dam which had been the subject of conflict, and near the Dietz home. The lumber company employés were on a return journey to camp. The farm hand went to drive and take care of the farmer's team which with his lumber wagon and tote rack was procured to make the balance of the journey. The lumber company had a team, which was hitched with the other one, making a team of four horses. The two company employés took the driver's seat and one of them did the driving. The two officers sat on bags of feed behind such seat and back of them was the farm hand. Traveling as indicated, armed with several guns, which however were not loaded, about 1 o'clock in the afternoon, at a point about three miles from the camp, Elliot observed a man hiding behind the stub of a tree, about 14 feet from the road and to the rear, and called attention of his associates thereto. The man changed his position as the wagon proceeded, so as to keep the tree stub between him and range from the position of the men in the wagon. The wagon had not gone far, after the man was first observed, before he suddenly stepped into the open, instantly brought his rifle to his shoulder, yelled “Hands up, you sons of bitches!” and commenced firing. Instantly, after the first shot was fired, another man, armed with a rifle, stepped from hiding into the open, near the first one and, likewise, instantly commenced firing on the party in the wagon. Immediately after the first shot the horses broke into a run. The discharge of firearms continued as long as the receding party could be kept in range, many shots in all being fired. One bullet went through the farm hand's hat, just above the band and he fell out of the wagon into the road. The men were recognized as Dietz and the accused, the former being the one who first commenced firing. Four bullets took effect in the wagon. One of the persons on the front seat was struck with two pieces of bullets, wounding him severely in the right forearm. He was struck also by a bullet which cut one of his suspenders below the buckle and grazed and left marks on his body. The party did not wait or go back for the farm hand. They went on, after regaining control of the horses, several miles to a logging camp away from the contemplated route and made no further attempt to execute the purpose for which they started. After the firing ceased two men approached Glauque, the farm hand, ordering him at the point of Dietz's gun to throw up his hands. They were in attempted disguise by blackening their faces, to some extent, and turning under their hat rims. After some altercation, Giauque was forced to return on foot to his employer's home, the accused by Dietz's direction, running him down the road with the pointed gun against his back and kicking him several times and otherwise abusing him, commanding him to run under peril of being so filled with shot that he could not run and having his head blown off. In the meantime the accused had picked up a second gun, a shotgun, which was secreted behind a log near the location he occupied when the party...