Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1902-08-14

| then remember whether or not it was
as big as her finger, and said on the
trial that she did not then (does not
now,1 remember whether or not the
club was as big as her finger. 1t
appears from the testimony of the
physicians that on the 4th of October
the day after the whippingS-
| MarIon's appearance indicated that
she had been poorly nourished: that
her blood was impoverished and that
| her bowels and kidneys were in con-
stipated condition. | do not under
| stand that there is or has been any
claim that Marion was denied food
suitable in quality or amount Mar
IONS testimony, as a whole, and her
manner at times OF giving it, shows to
the experienced practitioner that her
recollection as to many details is very
liable to be more or less at fault, and
that some of her statements are pro-
badly, in some degree, exaggerationS.
| But think the jury were authorized
to find from her evidence, and evil
dence cOrrOborative of hers, that the
| injuries inflicted upon her by the
defendants were substantially as just
now recited. DR.. COnrOy, the ply
Sician who was called to see Marion on
the morning Of October +, and who
| treated her during the first two days,
(after which she was placed in charge
OF the city phySician,) testified as a
! witness for the state. He described
the then appearance OF MariOn'S
! injuries substantially as I have deS-
ctibed them. He added: II do not
| think any OF the wounds, barring
| nfa 70
against life or seriously impair
health" Again: ''Such wounds
were more serious than they would
have been to child better nourished. :"
He further stated that there was
danger of infection from DELAY, and
| the principal danger Of serious cOnSe-
quences would be from infection if it
intervened. Also, that nature, with
out aid OF the phySician,) frequently
cures Infection when it occurs: and
| that infection is easily handled by the
medical profession. Dr. French, who
treated Marion after the first two
| days, also testified; but [ think gave
no evidence OF Importance other than
as testified to by DR.. ConrOy. There
is great mass of evidence, involving
a wilderness of detail and including
much repetition, which cannot now be
referred to atany length. l think the
| principal facts, presumably believed by
| the jury to have been proven by the
evidence as a whole, are substantially
covered by the foregoing recital. Do
such facts Justify the verdict of guilty?
The crime charged, for which the
defendant was tried, let it be remen-
bered, is that he committed the
assault and inflicted the injuries
mentioned sin manner evincing a
deprayed mind regardless OF human
life, without any premeditated design
| to effect the death Of Marion, and
under such circumstances that, if
death had resulted, the defendant
would have been guilty Of murder in
| the second degrees" that is, that the
assault was accompanied by acts I'M
minently dangerous to Marion, eyinc-
ing depraved mind regardless of
her life. II this particular crime is
Jot pro~en by the 9vidnr'ce TO nave
been committed, conviction or UnlS
crime cannot be sustained. no matter
| how cruel and indefenSible defendants
conduct is shown to have been. Ine
conduct which constitutes murder in
the second degree under our statute,
and other similar ones, has frequently
| been described by the Courts OF last
resort in several Of the states, lnclud-
ing the supreme Court of our own
state, by illustrations, such aS-"lf
one wilfully ride an unruly horse into
a crowd, or throw a stone or fre gun
into a crowded street, or the like,
with intent to do hurt, the probable
danger being great and apparent,
al though without intent to kill, and
one is killed by it," This conduct
constitutes the 'actS imminently,
III. e. Immediately dangerous to
Others" of themselves evincIng d
depraved mind regardless of human
life" which are held to be an indis-
pensable ingredient of murder in the
second degree; and it is equally in
dispeusable that conduct equally
dangerous in character and immedi-
ately threatening in fatal consequences
be present, in order to constitute an
assault committed in violation OF
Section 4374a, where death did not
ensue. In State VS.. Hogan, 36 Wis.
246. RYAN, G.. j., uses the following
language: 1.-THE statute does not 60 on
fortuitOus or latent danger but on
essential and apparent danger of the
act producing death. The act must
be inherently and consciously danger
Gus to life, not such as casually pro-
duces death by miSadventure. 1t
must be dangerous in and Of itself, as
committed, and when committed,
whether death follow it or not. This
we think not only the spirit Of the
statute but the letter also, implied
by the words used" The SectioniS
new; has only recently been enacted as a
part of our criminal code. and the
RevisOrS who recommended it's adop-
tiOn say thatit was intended ITO cover
class of cases not provided for other
wise than by conviction for an
assault with intent to do great bodily
harm punishment which is diSpro-
portionate to the magnitude of the
Offense" That is, the assault con-
demned by the statute is more
heinouS, and deserves punishment in
greater degree. than an assault with
intent to do great bodily harm. Such
deliberate and authoritative construc-
tion of the language of the statute
under consideration renders It impuS'
J Sibe, as it seems to me, To sustain the
, verdict of guilty in this case against
\ the defendant Jungblud. Inc evi
) dence in the view most favorable tt
the state fails TO show that the uefetl-
tiant'S Conduct was such as to lliVuivt
Inherent and conscious danger tt
/ Mariun's life; fails to show any act ol
acts imminently dangerous to her life
or such as evinced a depraved mind
t regardless of her life: an absolute
r Indifference whether she lived or died
/ The beating of Marion was cruel il