Zingler v. State

Siebeckeb, J.

It is averred by the plaintiff in error that the court erroneously submitted the case to the jury and permitted them to find him guilty of murder in the second degree, upon the ground that there was no evidence in the case to sustain such a verdict. The argument is made that, if it be found that the homicide was caused in the way heretofore stated, it conclusively appears from the opinion evidence in the case that the act which caused the death was committed through an impulse wholly devoid of any malice or animosity toward the deceased and hence cannot constitute murder in the second degree as defined in our statutes. There was no defense of insanity interposed in the action, and the defendant must therefore be treated as a responsible human being and held to accountability for the necessary and ordinary consequences of his acts as established by the evidence in the case. *534 His conduct material to tbe issues involved cannot, therefore, be treated as the product of an irresistible impulse resulting from mental disease, which overthrew the reason and judgment, extinguished the power to distinguish between right and wrong, and classed him as an insane person. The evidence respecting defendant’s relation to the homicide must therefore be considered as referring to a person responsible for his acts.

The reason assigned upon which the evidence is claimed to be insufficient to sustain a conviction of murder in the second degree is that the opinion evidence is indisputably to the effect that the act which produced death, though dangerous to another and evincing a depraved mind regardless of human life, was not accompanied by the elements of malice and animosity required to be shown to constitute murder in the second degree. This contention goes upon the theory that the defendant was not to be held responsible for the necessary and ordinary consequences of his act because he is said to have been impelled thereto by a perverted moral impulse. This is, in one of its phases, a claim, in substance and effect, that he was insane and irresponsible, which defense, as heretofore stated, was not made, litigated, or considered upon the trial of the case.

Treating the evidence in the case as applying to a responsible person, it is manifest that the jury were justified in concluding that the act which produced Mrs. Nitsche’s death constituted murder in the second degree. It is obvious from the very nature of the act that it was dangerous to another and unmistakably evinced a depraved mind regardless of human life. This evidence may well have led the court to conclude that the defendant in perpetrating the act had not formed the premeditated design of effecting Mrs. Nitsche’s death, which design characterizes the crime of murder in the first degree. But the facts and circumstances were such that the perpetrator of the act may well be held to have known *535 that in its necessary and ordinary consequences it was dangerous to tbe life of another, and hence it furnishes the foundation for the legal inference of such constructive intent as is implied in the law from such conduct under the statute defining murder in the second degree, as construed in Hogan v. State, 36 Wis. 226 , and Cupps v. State, 120 Wis. 504 , 97 N. W. 210 , 98 N. W. 546 , and cases there cited.

We find no reversible error in the refusal to instruct as requested and in the instructions submitted by the court.

By the Court. — Judgment affirmed.