Williams v. State

Citation61 Wis. 281,21 N.W. 56
PartiesWILLIAMS v. STATE.
Decision Date14 October 1884
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to circuit court, Marathon county.

G. W. Cate, for plaintiff in error.

J. K. Parish and H. W. Chynoweth, Asst. Atty. Gen., for defendant in error.

TAYLOR, J.

The plaintiff in error was convicted of murder in the first degree upon an information charging him with the murder of one Thomas Skirbin, on the twenty-third day of September, 1882, in the county of Taylor. The trial was had in the circuit court of Marathon county. After judgment and sentence the accused sued out a writ of error to this court. A bill of exceptions was settled by the court below, and the record, with the exceptions, are brought before this court for review. A motion to set aside the verdict and for a new trial was made in the court below upon the whole case, which was refused, and such refusal to set aside the verdict is the principal ground of error alleged in this court.

The learned counsel for the plaintiff in error insists that there is not sufficient evidence to sustain a conviction-- First, because the evidence fails to show that the deceased, Skirbin, was murdered by any person; and, second, if there is sufficient evidence to establish that fact, there is no sufficient evidence that the plaintiff in error was the person who committed the murder. After a careful reading of the evidence it seems to us that the contention that the evidence does not justify the finding that Skirbin's death was caused by acts of violence inflicted upon his person by some one which resulted in his death, and were the direct cause of his death, is unfounded. The evidence on this point, briefly stated, is as follows:

On the twenty-third of September, 1882, Skirbin was at Dorchester, on the Wisconsin Central Railroad, and after doing some business there was intending to take the passenger train north to Westboro; that he was delayed in his business, and missed the train; that afterwards he got on board of a freight train and went as far north as Medford, where the train stopped for the night. He arrived at Medford about 4:52 o'clock P. M., according to train time; at all events, before 5 o'clock P. M. At that place he bought some crackers and cheese, and had some conversation with a man by the name of Brown, who sold him the crackers and cheese, about purchasing tickets to bring his wife and children to this country from Europe. To this man he said he was going to Westboro, on the line of the road, about 16 miles north of Medford, and would come back again on Monday to buy the tickets. He had some money with him at Medford. Brown changed a $20 bill for him. He left the store of Brown shortly after 5 o'clock P. M. There was no train going north until 3 o'clock the next morning. He was not seen in Medford after he left Brown's, so far as the evidence shows, and he was not seen afterwards (unless he was seen, as the state claims, on the railroad about four and one-half miles north of Medford shortly after 6 o'clock that evening) until the next morning, at about 8 o'clock, when he was discovered lying at the foot of the embankment of the railroad track, about half a mile south of the Whittlesey station, and about six miles north of Medford. He lay back of and under a small pine tree, almost insensible, with a bruise and cut upon the back part of his head, and another on the side of his face and head. Some blood was discovered between the rails of the track nearly opposite where he lay, and there were evidences that he had been dragged from the place where the blood was found between the rails down the embankment to the place where he lay by the pine tree. The appearance of the blood found between the rails indicated that it had been there for some time, as it was partially dried, and the wounded man was shivering as with cold. His clothes were not torn, and there were no wounds on his person except those on his head. There was a club found on the track near by, with which the wounds on the head might have been made. Skirbin died about a week after, from the effects of the wounds on his head; and from the time he was found to the time of his death he was in a semi-unconscious state, so as to be unable to give any definite account of how he received his injuries. When found he had no money on his person. No trains had passed over the road after he was seen at Medford about 5 o'clock P. M. until he was found, except two: one going north about 3 o'clock in the morning of the 24th, and one south, about 7:20 in the evening of the twenty-third of September. The persons in charge of those trains did not see the deceased at any place on the track. Some question is made upon the point whether the injuries inflicted upon the head of deceased caused his death. We, however, think the evidence on that point quite satisfactory.

We think upon this evidence it was purely a question of fact for the jury, and not one of law for the court, whether Skirbin came to his death by blows inflicted upon him by some person, and their finding from that evidence that he was in fact murdered is entirely sustained by the evidence. We think the presumption that he fell from the train going up at 3 o'clock in the morning, or that he was struck by the train passing south at 7:20 in the evening, is clearly rebutted by the evidence, if it were plausible to entertain a presumption of his injury in that way. The wounds on his person were not such as would be likely to be received had he been struck by an engine passing on the track; and there is no evidence that he ever was on board of the train going north at 3 o'clock in the morning. We are satisfied that the jury were fully justified in finding that Skirbin came to his death by blows inflicted upon him by some person, and that his injuries were not the result of any accident.

Upon the other point, whether the plaintiff in error inflicted the blows which caused the death of Skirbin, the evidence is, to my mind, less satisfactory. The facts upon which it is claimed that the jury might rightfully find that plaintiff in error inflicted the fatal blows upon the deceased are the following: It is shown that the defendant was in Medford on the twenty-third of September, 1882, in the afternoon, and that he must have remained there until about the time Skirbin left to go north upon the railroad track. Upon this point the evidence is not clear, but it is certain that shortly after 6 o'clock on the evening of the 23d the defendant was going north on the railroad track at a point 4 miles and 90 rods north of Medford, and 1 mile and 229 rods south of the place where Skirbin was found the next morning, and that after stopping and talking with the witness McCarty a very short time, he went on north on the railroad track, stating to McCarty he was going to Chelsea. At this point it is claimed by the state that Skirbin was in company with the defendant, and that he walked ahead of defendant, while defendant was talking with McCarty, and when defendant started up the track the deceased was only about 80 rods ahead of him. All the parties agree that there was another man on the track, and that he was only a few feet from the defendant when defendant stopped to talk with McCarty. The only doubt is as to the identity of this person with the deceased.

About 7:20 P. M. the engineer on the train coming south says he saw a man on the track going north, a short distance north of where the deceased was found the next morning; that his attention was called to his presence from the fact that he remained on the track until the train was very near to him, when he stepped aside. His hat was drawn down over his eyes and face, so that he could not see his face. This person, the state claims, was the defendant. Shortly after this train passed south, some men passed south on the road on a hand car, and saw a man on the railroad bridge, a short distance north of where the deceased was found, whom they claim to identify as the defendant. Their attention was called to him from the fact that someone had placed a board across one of the rails of the track on the bridge; that they were unable to stop the car before it came to the board, but, fortunately, the car went over the board without getting off the track. After passing the board they stopped the car to remove the board, and when it stopped the man they claim to recognize as defendant was standing on the end of a tie or timber of the bridge, and when they stopped he stepped on the track and passed on north. The next seen of the defendant was at the house of the witness Correan, whose house is 7 miles and 147 rods from Medford, and 1 mile and 175 rods from the place where deceased was found. Correan says the defendant arrived at his house after 9 o'clock in the evening. His testimony as to the time of his arrival there is supported, to some extent, by the testimony of two other witnesses who were at work with Correan that day, took their suppers at the house of Correan, and then went from his house to Whittlesey over the same road the defendant would come to his house. These witnesses saw nothing of defendant on their way from Correan to Whittlesey. They say they left Correan's between 8 and 9 o'clock in the evening.

The witness Correan says the defendant seemed excited when he came in; that he had no particular business with him, and the next morning said he wanted to go fishing to a lake, back in the woods several miles. Defendant had no fish-pole or fishing tackle with him. Defendant says he went to the lake the next day, and from there back to his home, but caught no fish. There was some evidence tending to show that defendant had no money on the twenty-third of September, or very little, and that afterwards, on Tuesday, he had some money, and purchased money orders at the post-office of the value of $11, and evidence of his statements about the man who was seen with him by the witness McCarty. He states this...

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