Winn v. State

• Decision Date: 15 June 1892
• Citation: 52 N.W. 775,82 Wis. 571
• Parties: WINN v. STATE.
• Court: Wisconsin Supreme Court

82 Wis. 571

52 N.W. 775

WINN

v.STATE.

Supreme Court of Wisconsin.

June 15, 1892.

Error to circuit court, Langlade county; JOHN GOODLAND, Judge.

Lowell A. Winn was convicted of an assault with intent to kill, and brings error. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

Growing out of a gambling and drinking debauch in a saloon at Antigo, in Langlade county, on October 23, 1889, a quarrel arose between the plaintiff in error, Lowell A. Winn, and one Defoy, one of the proprietors of the saloon, and it seems that Defoy assaulted Winn. The latter thereupon left the saloon, went to his home, obtained a loaded revolver, and returned with the avowed intention of killing Defoy. They met on the sidewalk in front of the saloon. There were also present one McNeil, the partner of Defoy, and Thomas Coates. Winn pointed the revolver at Defoy and pulled the trigger, but the revolver failed to discharge. Thereupon the others seized Winn and attempted to disarm him. During the struggle the revolver was discharged, and the bullet therefrom entered the body of Coates, who died of the wound a few days later. The revolver was either accidentally discharged, or it was intentionally fired by Winn at Defoy. An information against Winn was filed in the circuit court charging that by reason of such shooting he, with malice aforethought, feloniously did kill and murder Coates. Winn was tried on such information and acquitted. Thereupon another information against Winn was filed, based upon the transactions above stated, charging that he then and there feloniously assaulted Defoy with intent to kill and murder him. To such information Winn interposed a special plea, alleging his trial and acquittal on the information preferred against him for the murder of Coates in bar of the charge for the felonious assault on Defoy. The circuit court overruled such plea; that is, it sustained a general demurrer thereto. Winn thereupon pleaded not guilty to the charge contained in the last information. He was tried for such offense, convicted thereof, and sentenced to imprisonment in the state prison for a term of years. He has sued out a writ of error from this court to obtain a review and reversal of such judgment. The proceedings, testimony, and rulings on the trial are sufficiently stated in the opinion, in connection with the statement and consideration of the various errors assigned as grounds for a reversal of the judgment.John E. Martin and Benjamin M. Goldberg, for plaintiff in error, ( Olin & Butler, of counsel,) in support of plea of former acquittal, cited: State v. Locklin, (Vt.) 10 Atl. Rep. 494;State v. Colgate, 31 Kan. 511, 3 Pac. Rep. 346;Fisher v. Com., 1 Bush, 211; Zuitzow v. State, 1 Tex. App. 47;Oleson v. State, 20 Wis. 58;Clem v. State, 42 Ind. 420;State v. Pujo, 6 South. Rep. 339, (La. 1889;)Triplett v. Com., (Ky. 1886,) 1 S. W. Rep. 84;Fox v. State, (Ark. 1888,) 8 S. W. Rep. 836;Roberts v. State, 14 Ga. 8;Holt v. State, 38 Ga. 187;Com. v. Bright, 78 Ky. 238, (1880;)State v. Damon, 2 Tyler, 387;State v. Smith, 43 Vt. 324;Hamilton v. State, 36 Ind. 280;Fritz v. State, 40 Ind. 18;Wininger v. State, 13 Ind. 540; State v. Cooper, 13 N. J Law, 261; Wilcox v. State, 6 Lea, 571;State v. Rollins, 12 Rich. Law, 297;Com. v. Hawkins, 11 Bush, 603;Ben v. State, 22 Ala. 9;State v. Johnson, 12 Ala. 840; Regina v. Gould, 9 Car. & P. 364; Fiddler v. State, 7 Humph. 508.

Michael Kirwan, Asst. Dist. Atty., cited: People v. Majors, 65 Cal. 138, 3 Pac. Rep. 597;Com. v. Roby, 12 Pick. 496Com. v. Bakeman, 105 Mass. 53;Morey v. Com., 108 Mass. 433;State v. Standifer, 5 Port. (Ala.) 526;Campbell v. People, 109 Ill. 565;Gordon v. State, 71 Ala. 315;State v. Elder, 65 Ind. 282;Com. v. Tenney, 97 Mass. 50; Dinkey v. Com., 17 Pa. St. 126; Johnson v. State, 19 Tex. App. 453; 11 Amer. & Eng. Enc. Law, 937; State v. Horneman, 16 Kan. 452;Womack v. State, 7 Cold. 508;Johnson v. State, 65 Ga. 94;Com. v. Cutler, 9 Allen, 486;People v. Parrow, (Mich.) 45 N. W. Rep. 514;State v. Larkin, 49 N. H. 36;State v. Buzzell, 58 N. H. 257;Com. v. Andrews, 2 Mass. 409;Williams v. State, 13 Tex. App. 285.

J. M. Clancey, Asst. Atty. Gen., for the State.

LYON, C. J., ( after stating the facts).

I. The special plea in bar of this prosecution sufficiently avers that the charge of the murder of Coates in the first information, and the charge of an assault with intent to murder Defoy in the present information, are predicated upon one and the same act of Winn. It is correctly argued in the plea, as it was at the bar, that if he committed the alleged felonious assault upon Defoy, and in doing so killed Coates, although unintentionally, he is guilty of murder. But the jury acquitted him of the crime of murder, and from that fact the inference is plausibly drawn that the jury must necessarily have negatived the alleged felonious asault upon Defoy, for otherwise they would have convicted Winn of the murder charged. It was very earnestly and ingeniously contended in argument by the learned counsel for Winn that, in substance and legal effect, such acquittal is an acquittal of the charge of felonious assault in the present information, and that by compelling the accused to trial therefor he was put twice in jeopardy of punishment for the same offense, in violation of the constitutional and statutory declaration of rights in that behalf. Const. art. 1, § 8; Rev. St. § 4610. The arguments for and against the sufficiency of this special plea are very full and able, and numerous adjudications are cited on either side in support of the respective propositions of counsel. These citations will be preserved in the report of the case. To review the cases would call for a treatise on this branch of the law. We do not feel called upon to undertake the task of writing one. We adopt as the law on this subject the rule laid down by Chief Justice SHAW in Com. v. Roby, 12 Pick. 496. The rule is that the offenses charged in two indictments are not identical unless they concur both in law and in fact, and that the plea of autrefois acquit or convict is bad if the offenses charged in the two indictments be distinct in law, no matter how closely they are connected in fact. In order to determine whether there is a concurrence in law, that is, whether a conviction or acquittal on one indictment is a good bar to a prosecution on another, the true inquiry is whether the first indictment was such that the accused might have been convicted under it by proof of the facts alleged in the other indictment. If he could not, the conviction or acquittal under the first indictment is no bar. The result of an application of this test to the present inquiry is obvious. Winn could not have been convicted of the murder of Coates merely upon proof that he made a felonious assault upon Defoy. Proof that he killed Coates would also be required. Hence an acquittal on the information charging the murder of Coates is no bar to this information for a felonious assault on Defoy, and the special plea was properly overruled. To the same effect is the English case of Queen v. Morris, L. R. 1 Cr. Cas. 90, in which the accused was convicted of an assault and battery, and suffered punishment therefor, and afterwards the injured party died of the wounds inflicted upon him by the accused. A subsequent indictment for manslaughter was upheld on the ground that the two prosecutions, though founded on the same assault, were for different offenses. The same question has frequently arisen in prosecutions for violations of excise laws, and the rule above stated seems to have been invariably applied by the courts. Black, Intox. Liq. 648, c. 21, § 555, and cases cited in notes. The reasonableness and justice of the above rule is shown and emphasized by the testimony on the trial of this case. It appears quite satisfactorily, if not conclusively, therefrom that Winn made a distinct felonious assault upon Defoy when he pointed his loaded revolver at him and snapped it, which had no connection with the killing of Coates, and that such killing resulted from the struggle to disarm Winn, and was purely accidental. Very likely Winn was acquitted of the murder of Coates on similar proofs, and the jury may not have considered, probably did not consider, whether Winn intended to kill Defoy or not when the revolver missed fire. Had issue been taken upon the special plea, and tried on the testimony in this record, we should expect the jury to find that the first assault, to wit, the attempt by Winn to shoot Defoy, had nothing to do with the acquittal of Winn of the murder of Coates, and that the question whether such attempt...