Minaghan v. State

Cassoday, J. A civil action involving the same facts was before us at the last term. Higgins v. Minaghan, 76 Wis. 298. The accused owned the land on both sides of the road in front of and in the immediate vicinity of his house. The several persons who assembled in front of that house on the three occasions named had the legal right to use that road for travel, but for no other purpose, especially after being notified by the accused to leave the premises, as they confessedly were on the first night they appeared. The demonstration made in front of the house on each of the evenings [647] named, was confessedly an assault upon the accused and the several members of his family. The statute expressly declares, in effect, that any person who shall make any inexcusable or unjustifiable assault upon another, or who shall use, in reference to and in the presence of any member of his family, abusive or obscene language, intended or naturally tending to provoke an assault or any breach of the peace, shall be punished by imprisonment in the county jail, etc. Sec. 4398, S. & B. Ann. Stats. The statute also provides, in effect, that any three or more persons who shall assemble in a violent or tumultuous manner to do an unlawful act, or, being together, shall make any attempt, or motion towards doing a lawful or an unlawful act, in a violent, unla/wful, or t/urrmltuous manner, to the terror or disturbance of others, shall be deemed an unlawful assembly; and, if they commit such acts in the manner and with the effect aforesaid, they shall be deemed guilty of a riot, and punished as prescribed. Sec. 4511, R. S. The statute also provides, in effect, that any person who shall, either verbally or by any written or printed communication, maliciously threaten to do any injury to the person or property of another, with intent thereby to extort money, or with intent to compel the person so threatened to do any act against his will, or omit to do any lawful act, shall be punished by imprisonment in the state prison, etc. Sec. 4380, S. & B. Ann. Stats. Such are some of the offenses which the assailants of the accused confessedly committed on the several nights of Tune 18, 22, and 25, 1887. Of course the perpetrators of those offenses were not on trial in this action; and we are not sitting in judgment on their conduct in the premises, except in so far as the same may be regarded as a provocation, excuse, or justification of the offense for which the accused was tried in the case at bar. These provisions of the:, statutes, in connection with the foregoing-statement of facts, will serve to make more manifest some •of the errors relied upon for a reversal. [648] Tbe prosecution was allowed to prove, in effect, by tbe first witness sworn in tbe case, and against timely objections on tbe part of tbe accused, that it bad been tbe custom in that part of tbe country, upon tbe marriage of any persons wbo failed to bave a public wedding, and invite in all tbe people of the neighborhood, and treat them to beer, something to eat, and so on, to give them a charwari. This was followed by tbe testimony of at least two witnesses -on the part of tbe state, taken under timely objections, to tbe effect that such custom existed in that part of tbe country. Such evidence was peculiarly calculated to influence tbe jury. Assuming that such custom furnished some excuse for assembling near tbe bouse of the accused in tbe first instance, which is veiy doubtful, yet it furnishes no excuse for remaining and conducting themselves in tbe way they did for hours after it is conceded they were ordered to leave tbe premises, nor for their returning on tbe two subsequent evenings. Tbe accused bad tbe legal right to get married in a private way, without treating or feasting any one; and,, assuming that be did, yet it furnished no excuse for extorting money or assaulting tbe accused and bis family in tbe manner conceded, much less in tbe manner testified to on the part of tbe accused. If it is not an established maxim, it ought to be, that no one can escape tbe punishment of tbe law by proving a custom contrary to law. It is for tbe good name of that community, and tbe honor of our commonwealth, that the laws prescribed by rightful authority shall be maintained in their integrity; and every true citizen should be interested in maintaining tbe same, any particular custom to tbe contrary notwithstanding. There are other errors in tbe record, but, in view of what has been said, they are not likely to be repeated, and hence need not be here considered. By the Qowrt.— Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.