Patzer v. State

Siebeckee, J. The only question presented for review is: Did the court err .in refusing to submit to the jury the inquiries whether or not the defendant was guilty of manslaughter in the second degree as defined by sec. 4350, Stats., and of manslaughter in the third degree as defined by sec. 4354, Stats. The distinguishing characteristic of the offenses is that the acts charged are committed in the heat of passion. The court rejected the written request of the defendant to submit these issues to the jury and denied a motion for a new trial upon the ground that the evidence did not permit of the inference that the homicide was committed in the heat of passion. The court stated in its opinion in ruling bn this motion that it was a debatable question “whether, when self-defense is set up and relied upon, the defendant can ask and require the court to submit the two degrees of manslaughter . . .” defined in the foregoing sections. This conclusion was based on the following statement in the opinion of this court in the case of Bradley v. State, 142 Wis. 137, 141, 124 N. W. 1024. In discussing the applicability of the evidence in that case as to these offenses it was said: “This section [4354] -is not intended to apply to a case where the accused justifies the homicide as one committed in self-defense.” It is manifest that a person acting in self-defense could be aroused to a state of exasperation, rage, sudden resentment, or terror which would disturb or obscure the actor’s reason to such an extent as to overcome and dominate the judgment of an ordinary person and thus make him incapable of forming the intent to kill which characterizes the crime of murder. An examination of the Bradley Case shows that the sentence in the opinion quoted above must be interpreted as expressive of the court’s view when [43] applied to the particular facts in that case, and that when the accused sought to justify the homicide as self-defense upon the grounds there relied upon, sec. 4354, Stats., was not intended to apply. Though the language of this sentence in'the opinion of the Bradley Case is general in its terms, it is to he restricted in its application to the particular case then under consideration and must not he deemed declaratory of a rule that in all homicide cases where self-defense is invoked the offenses defined in secs. 4350- and 4354 cannot exist. As we view the case, the errors alleged on account of the court’s refusal to submit the case to the jury under secs. 4350 and 4354, Stats., do not prejudicially affect the defendant’s rights. Assuming, without deciding, that the evidence presented a proper case calling for submission to the jury of the issues whether, or not the defendant was guilty of either of the offenses defined in secs. 4350 and 4354, Stats., did the refusal of the court to do so prejudice her in her legal rights ? The court instructed the jury that if they, under the evidence, believed the defendant guilty of either of the offenses defined to them in the instruction, then their verdict must be one of guilty of the offense they found was committed, and if they found none of these offenses had been committed by the defendant then they must return a verdict of not guilty. The defendant was convicted of murder in the third degree. The offenses defined in secs. 4350 and 4354 are of lesser de1 gree than the offense of which the defendant was convicted. In Fertig v. State, 100 Wis. 301, 75 N. W. 960, it was held that an instruction to the jury that they must find the accused guilty of an offense of a higher degree or not guilty, under the evidence which would warrant the finding of an offense of a lesser degree, is not prejudicial because it is favorable to the defendant in that it acquits him of the lesser offense and saves him from being convicted of the lesser crime. In Winn v. State, 82 Wis. 571, 579, 52 N. W. 775, the court declares that “The argument against the rule is [44] based on the assumption that the jury are determined to convict the accused of some crime, and if not allowed to convict him of the crime of which he is proved to be guilty, they will convict him of a greater crime without proof. Such an assumption is a grievous injustice to jurors and a severe arraignment of the institution of trial by jury. We believe the rule above stated to be a sound one and must therefore decline to change it.” In the following cases this practice was approved: Dickerson v. State, 48 Wis. 288, 4 N. W. 321; Murphy v. State, 108 Wis. 111, 83 N. W. 1112; Hempton v. State, 111 Wis. 127, 86 N. W. 596; Weisenbach v. State, 138 Wis. 152, 119 N. W. 843. Under the state of the record it must be held that it presents no reversible error. By the Court. — Judgment affirmed.