WAUPACA REPUCLIAN

July 3, 10913

 

MRS. PATZER SENTENCED TO 9 YEARS IN STATES PRISON

 

MOTHER OF THIRTEEN CHILDREN PAYS PENALTY FOR KILLING HER HUSBAND

WITH WHOM SHE LIVED FOR THIRTY-SEVEN YEARS

 

ATTORNEYS FOR DEFENDANT HOPE

TO SECURE HER PARDON AFTER ONE OR TWO YEARS

 

Heart Rending Scene as Defendant and Her two Small Daughters Hear Verdict of “Guilty” and are Separated.

 

            Thursday morning circuit court re-convened for the purpose of taking up the case of State vs. Mrs. Caroline Patzer for the murder of her husband last January.

Getting a Jury.

            Thursday was given up to securing a jury and when the regular panel of thirty-six names had been exhausted a special venire was called.

            Many of those examined had heard enough to have formed an opinion so were excused by the court.  As the prosecution has a right to twelve peremptory challenges and the defense has double that number it will be seen that it might be necessary to find forty-eight men eligible to sit in a case in order to secure a jury if the attorneys on the two sides exercise the right to strike off thirty-six names from the jurors who give satisfactory answers.

The Jurors Examined.

            Following were the jurors examined: 

            Harry Olson, Frank Shefelker, John Topp, Fred Meyer, Henry Much, Fred Dimmock, H.M. Lea, John Madsen, Leonard McGregor, George Steiger, James L. Thimpson, Mike Ahearn, August Krubsack, A.F. Anderson, Edward Golden, J.A. Peterson, E.T. Mather, E.A. Hannon, Byron Benson, Edward Tesch, John Lyons, Luther Thompson, Martinius Olson, Frank Wellen, Henry Bemis, Joseph Grober, Albert Potratz, Otto Prahl, Otto Stange, B.P. Hom, Marion McIntyre, Ralph Bailey, Lester Quimby, C.N. Christensen, Maurice Wilson, Thomas G. Meaney, Wm. Schumacher, James Hanson, Manning Lewis, A.L. Rowe, Halbert Swenson, O.G. Olson, Frank Carpenter, Fred Anderson, Charles Jaasman, Otto L. Bestul, Wm. Wied, Linus Michelson, Guy Pope, John Moore, C.C. Boyce, William E. Springer, Sam Erickson, Henry Pitt, E.E. Russell, Ralph Bestul, Peter Spengler, Henry Wolfrath.

            The fact that one had, at the time of the reported murder, formed an opinion of the guilt of the defendant does not necessarily bar a man from sitting on the jury to try a case if he can divest his mind of previous opinion and weigh the evidence for and against the defendant and decide impartially.  It was shown that the fact that one had formed an opinion from what he had heard or read did not excuse him from further questions and the man who held to the opinion based only upon hearsay and acknowledged that he had taken no steps to ascertain whether the reports were true did not have an assurance that his answers would pass without calling forth comment by Judge Park, who is ever alert to every line of testimony by prospective juror, and witness alike.

            When court adjourned Thursday evening it was known that there were at least two places to be filled and another special venire was issued and Friday morning it took from 9:00 to 9:45 to complete the panel which stood as follows:  John Madsen, Waupaca, Leonard McGregor, New London, E.A. Hannon, Waupaca, H.D. Bemis, Lind, Joseph Groher, Royalton, C.N. Christenson, Waupaca, Wm. Wied, Lind, Linus Michelson, Lind, Guy Pope, Lind, Wm. E. Springer, Fremont, Sam Erickson, Farmington, Henry Wolfrath, New London.

Prosecution Opens Case.

            After the presentation of the case by District Attorney Cole and a statement by Atty. Wm. N. Martin for the defense that he would present testimony tending to show that the blows that resulted in the death of Albert Patzer on Jan. 7, 1913, were struck by his wife, Caroline Patzer in self defense, the testimony by witnesses for the prosecution were called as follows:  Frank Seaver who was one of the jurors at the coroners inquest and who drew a sketch  of the residence of the Patzers showing the position of furniture about the interior of the premises.  Photographs and the sketch were introduced in evidence.

            Fred Drew, A.C. Quimby and John Isner were called to testify as to incidents taking place about the time of the discovery of the crime.

            Then followed Ella and Anna Patzer daughters of the defendant.  The modesty of the daughters of defendant and their frank manner in answering questions was most impressive upon those listening to their testimony.  Drs. L.H. Pelton of this city and Finney of Clintonville testified as to the condition of the body of Albert Patzer at the time the inquest was held.

            Emil Henschel and Fred Prill testified to the facts brought out about the time of the inquest.

            Two sons of defendant, Julius Patzer and Adolph Patzer and two daughters aged sixteen and fourteen gave very candid testimony that was most impressive as it seemed to be given reluctantly and seemed like a confession of an unpleasant truth and without exception it seemed that their testimony was a vindication of the father and an admission that the mother had a dangerous temper and habits of violence.

            Mrs. Ida Peterson a daughter, residing at Scandinavia had been married and away from the parental home for ten years.  Mrs. Peterson never knew her father to be quarrelsome or aggressive.  She had heard of many quarrels or disputes through the parents, brothers and sisters.

            Oscar Peterson lives at Scandinavia is a son-in-law of defendant, has visited at their home two to four times a year.  Testified that Mr. Patzer was amiable when he met him. He had heard of some trouble over pocket book that was found in barn by defendant who claimed tramp had stolen it and left it there.

            J.C. Quimby resides at Symco, has been justice of peace since 1872 in different towns.  Held inquest over body of Albert Patzer.  His wife Mary S. Quimby was stenographer and read the narrative form of the statement Mrs. Patzer made before the coroner’s jury stating that she saw a man leave the house and found Mr. Patzer lying on floor, she wiped up blood and called neighbors.  Mr. and Mrs. quimby the strictly impartial witnesses having in many years been schooled in looking only for the facts in a case and this was evident from the manner in which they testified.

            Fred Drew, Frank Seaver and Asa Beach, testified regarding their hearing testimony at inquest.

            E.J. Flanagan as deputy sheriff told Mrs. Patzer after the funeral, Jan. 11, that few people believed her story of a man coming to kill her husband and she best tell it just as it was.  She consented to do this.

The Confession.

            This confession was made in the home of Justice Quimby with Mrs. Mary Quimby to take down her statements as she related the events that transpired on that 7th of January in the Patzer home.  There were present by request of Mrs. Patzer her old neighbor, Ira Bishop and the man she asked to act as her administrator, Fred Drew of Symco and Dist. Atty. Cole and Mrs. Quimby.

            Mrs. Patzer then went to supper at the Krause hotel, then to the E. Hilke store then to confess to her minister then to the store and from there to her home where she confessed again to her children and a number of neighbors, whom she sent for, that she had done the act that she had at first said was the work of a strange man.  In these confessions there appears to be no allusion to the grabbing of her dress by her deceased husband during the quarrel that terminated in the death of the latter.

*****

of the most willing witnesses for the state was Andrew Meyers who testified that he had supper at the Krause hotel at Symco in company with Mrs. Patzer and while Mr. Flanagan was called away to the telephone, Mrs. Patzer toldhim that now she had a young man since Patzer was gone.  Also that she was glad that he was dead and they could do what they wanted to do with her if they did not knock her head off.  He also testified to being in company with Mrs. Patzer later in the evening in Hilke’s store and she gave him more details of the killing and did not seem troubled over the death of Mr. Patzer.  Later in the trial the defense brought several witnesses who claimed to be present and listening to what was said but they all denied hearing Mrs. Patzer boast of having planned to kill her husband.  This testimony of Andrew Meyer was denied by the defendant.  The general demeanor of defendant on afternoon of funeral as described by many witnesses did not conform to the attitude of witness as seen by Mr. Meyers.

            Mrs. Mollie Riske, Miss Martha Krause, Mrs. Edward Steinbock, Richard Steinbock, Mrs. Augusta Riske, Mrs. Wm. Henschel, Clara Tellock, Mrs. Albert Prill, Ida and Delia Lukejohn, all recounted statements they had heard defendant make which tended to show that she had entertained thoughts of hatred for the man she lived with for over thirty-seven years.  Some of these statements alleged to have been made by Mrs. Patzer were that however it might happen “he should go first”.  Another that she wished she could lick him as much as he had licked her.  A.G. Schudke talked in German with her in Manawa in presence of E.J. Flanagan and he testified that she told him that she had murdered her husband.

            The prosecution had a number of witnesses who testified to having heard defendant say that she would do violence to her husband in one form or another.  These outbursts were alleged to have been made on a number of occasions and under different circumstances, one being made at a sewing bee or feather stripping bee where the women of the neighborhood might be discussing matters relating to their home life.

            Mrs. Herman Patzer testified that Mrs. Caroline Patzer had told her she would drown her husband.

Testimony for Defense.

            After the prosecution rested its case Saturday afternoon the defense called Dr. Irvine who was called to the bedside of Mr. Patzer and made an examination less than a half hour before his death.  The injuries that he discovered did not impress him as so extensive as they did Drs. Pelton or Waupaca and Finney of Clintonville who made a careful autopsy removing the scalp after death of Patzer.

            The two youngest daughters were called and testified to all details of the home affairs from Saturday when parents went to Manawa till Tuesday night when he died. Both heard the father give their mother a short answer when she accosted him though on cross examination they failed to state the nature of the conversation that passed between them.

            M.J. Nolan testified to starting the couple home from Manawa Saturday afternoon when he assisted Patzer into sled and told him to let his wife drive which she later testified that she did till they had gone a half mile toward home when Mr. Patzer took the lines and drove home and put out his team, then the two did the chores without any unnecessary conversation passing between them.

            Following Mr. Nolan came Mrs. Mary Bahr who as Mary Steinboch worked at the Patzer home during the two summers when she was eight and nine years old respectively.  She testified to cruel treatment of defendant at the hands of her husband when she saw Mr. Patzer drag his wife out of bed by her hair.  Mrs. Wm. Lozler lives at Marinette but was one of the first women to settle near Symco.  As Mrs. John Townsend she was nearest neighbor of Mrs. Patzer.  She and Mr. Townsend sheltered defendant in their home and the next morning Mr. Patzer came over to Townsend’s according to her testimony, and said if his wife did not come home he would kill her and would kill Mr. Townsend if the Townsend’s kept his wife there another night when she should be at home.  This was thirty-five to thirty-seven years ago that the facts as related by these two witnesses took place.

            When Mrs. Patzer was later put upon the stand she testified that she had been whipped with knotted rope and straps and whips for many years and had been threatened of being shot within five years.

            Fred Drew was called to verify her testimony that she had been to his store in Symco to ask him not to sell her husband or her son any shells.

            Mrs. Warren Anderson had been at Patzer home and had heard Mr. Patzer peak harshly to his wife when she inquired about matters about the farm.  Mr. Patzer had answered in a kind of snarl.

            Mrs. Henry Patzer who has lived at Antigo three years testified that when she lived near the Patzer farm she had frequently visited there and had heard Mrs. Patzer ask questions of the husband and had heard him snarl.  She thought Mr. Patzer had started most of the quarrels.

Mrs. Patzer on Stand.

            The testimony of Mrs. Patzer was given in a very effective manner and her account seemed very plausible as given by her on direct examination. She gave a self defense story throughout and she called forth many expressions of sympathy from the bystanders.  She claimed that her husband after grabbing for a knife threatened to disembowel her calling her and old rip.

Mother of Thirteen Children.

            Her story of having come to America at an early age in company with a remote relative and upon marriage at the age of seventeen going to the woods north of Symco there to hew a home from the forest and to rear a family of thirteen children ranging in ages from thirty-four down to eleven years of age perceptibly affected all who attended the trial.  All thirteen children are living and all who were present at the trial favorably impressed all who saw or heard them.

            Could Mrs. Patzer’s case have been presented without her cross-examination by Dist. Atty. Cole, the result might have been different.  Mr. Cole he witness with the consideration due a woman of her age but her admissions under the careful questions of the prosecuting attorney were points that the jury had to consider in arriving at a verdict.  The witness admitted that her husband did not open the knife she claimed he had in his hand and she went at him to wrest the knife from his hand.  She testified that he grabbed her skirt and she reached to the wood-box and took a stick of stove wood and hit him on the forehead.  The knife fell from his hand.  She then struck again over right ear when the back of his head faced her.  She then struck a blow on the back of his head and he went forward upon his hands though he still sat on the chair which he had occupied during his meal.  She said to him “Pa, I guess we have been fighting too hard” and led him into the other room.  She cleaned off some blood stains which the diagram and other witnesses said were of such a distance from the wood box that it had a bearing upon the jury as to the credibility of defendant’s testimony.  After she had cleared up the kitchen she went to a neighbor to get assistance.  Mr. Isner was sent to look for the alleged tramp and Mrs. Isner assisted in taking off Patzer’s overalls and placing him on the bed.  Then Mr. Isner was called back and asked to go for a doctor from Symco a mile and a half away.  Mr. Patzer died that evening about ten o’clock.

            The jurors had to take into consideration the testimony of Dr. Finney, one of the physicians who made a careful examination of ht dead man, removing the scalp.  He had described the back of the head as looking like pounded beefstake.

            The attorneys made a careful review of the case in order as follows:  Atty. Van Doren for the state, Atty. Martin and Atty. W.E. Fisher for the defense and Dist. Atty. Cole having the closing argument for the state.  Each side was allowed three hours for argument and Judge Park read his charge to the jury at five o’clock Tuesday.  This charge we print in full in this issue.

The Verdict.

            Wednesday morning at 10 o’clock the jury returned a verdict of guilty of murder in the third degree, the penalty of which the statute prescribes seven to fourteen years in state prison.

            Judge Park pronounced a sentence of nine years in state prison, or two years more than the minimum sentence that he could have given under the statutes.

            When the verdict of guilty was given out by John Madsen, foreman, Wednesday morning, Mrs. Patzer clasped her eleven year old daughter to her breast and cried aloud at the fate she knew awaited her.  It was one of those scenes that one wishes to banish from his memory.

Committed to Prison.

            Wednesday afternoon Sheriff Tollefson took his prisoner to Waupun to begin her sentence which will doubtless be much shortened by good behavior.

Will Work for Pardon.

            The attorneys for the defense will take immediate steps to secure the pardon of Mrs. Patzer after a year or two in prison which many will consider sufficient in view of all the facts.  This will give an opportunity for the people, who hoped to see defendant acquitted, to do something to aid in bringing about her release.

*****

RECORD SPEED OF TRIAL.

*****

            The trial of Mrs. Patzer was a record breaker in point of number of witnesses and volume of testimony given for the three days from Friday at 9:45 a.m. to Monday 5:30 p.m.

            Reporter Morse stated that on Friday he took the greatest amount of testimony that he ever wrote in a single day and there was no lost time till the testimony was all in and the defendant rested its case Monday 5 p.m.

            Dist. Atty. Cole did not choose to offer rebuttal and Tuesday was given over to the arguments of the lawyers.  Atty. Van Doren opened the case for the prosecution. Atty. Martin answered for the defense and was followed by Atty. W.E. Fisher. Dist. Atty. Cole closed the argument for the state which had the burden of proof to sustain some one of the five forms of crime which the jury must consider in arriving at a verdict and

(Portion missing)

 

 

 

 

 

 

 

JUDGE PARK’S CHARGE TO JURY

*** That Guided Jury in its Deliberations in the Patzer Case.

***

Gentlemen of the Jury -

            I will now submit this case to you for your verdict.  It is my duty to instruct you concerning the rules of law that should guide you in reaching your conclusion.  By the information filed by the District Attorney against the defendant, it is charged that the defendant, Caroline Patzer died, on the 7th day of January 1913, in this county of Waupaca, feloniously and of her malice aforethought, kill and murder Albert Patzer.  To this charge the defendant has pleaded “not guilty” and this forms the issue for you to determine.

            The offense charged against he defendant is the most serious crime known to law and you are performing a very grave duty in reaching your verdict in this case.  It is necessary to the peace and good order of society and the safety of all people that the law should be enforced and that persons guilty of crime should, with firmness and certainty be convicted and punished.  It is also of the utmost importance that no one who is innocent of crime should be either convicted or punished.  It is, therefore, your duty to exercise the utmost care and caution in scrutinizing, weighing and considering the evidence, in order that no injustice may be done to the defendant on the one side or to the people of the state of Wisconsin on the other.

            You are, by law, made the sole and responsible judges of the credibility and effects of the evidence, and your verdict should reflect the truth as you find the same to be from the evidence given here in Court, considered in the light of the Court’s instructions.

            Your verdict must be based upon the evidence received and proceedings had here on this trial and upon nothing else. If you have learned, elsewhere, anything about this case, it is your duty to lay aside all such outside knowledge and base your verdict only on the evidence and proceedings here on this trial.

            The defendant entered on this trial presumed by the law to be innocent of any crime.  She is not required to prove her innocence.  She is presumed to be innocent until proven guilty, and it is your duty to reconcile the evidence with this presumption, if reasonably possible.  before you have any right to find her guilty of any offense, every member of the jury must be convinced by the evidence, beyond all reasonable doubt, that she is guilty.  If, after an entire comparison and consideration of all the evidence in the case the mind of any juror is in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the guilt of the defendant, then he should not consent to any verdict of guilty.

            But a reasonable doubt which forbids conviction must be real and not imaginary.  It must be a substantial misgiving from which a reason may be given, based upon the evidence or lack of evidence in the case.  Guilt is proven beyond a reasonable doubt when all the evidence in the case, impartially and rationally considered, is sufficient to impress the judgment of ordinarily reasonable and prudent men with a conviction upon which they would act, without hesitation in the most important affairs of life.  The jury are not at liberty to adopt unreasonable theories of suppositions in considering the evidence in order to justify a verdict of conviction.  If any reasonable view of the evidence can be adopted which admits of a reasonable conclusion that the defendant is not guilty of any crime charged in the information, or which raises a reasonable doubt of such guilt, it is the duty of the jury to adopt such view and acquit the defendant.

            In considering the testimony you should, as to each witness, consider his or her age, appearance, and manner of testifying, interest in the result of the trial, if any appears, any temptation to testify falsely, appearing in the evidence, his or her intelligence or lack thereof, opportunity to know the facts and the probability or improbability of the testimony given, and all other circumstances appearing by the evidence, and from all these you should determine upon the weight and credit you should give to the testimony of each witness.

            The defendant has testified on her own behalf.  She is a competent witness and you should not discredit her merely because she is charged with murder.  She is, however, deeply interested in the result of this trial, and you are entitled to take that into consideration and consider the temptation which arises under such circumstances, to testify to a state of facts favorable to herself.  Other witnesses on this trial may, by reason of their relation to the person concerned, be deemed to be interested in the result.  You should take into consideration all such interests so far as they appear by the evidence.  The same tests that you apply to determine the credibility of the defendant you should apply to other witnesses.

            The word “homicide” as used in these instructions means the killing of a human being.

            It appears, by uncontradicted evidence that, on the 7^th day of January, 1913, in this county of Waupaca, the deceased, Albert Patzer, in his own home, came to his death by being struck on the head that the blows on his head which caused his death, were inflicted by the defendant, Caroline Patzer, and that, in striking the blows, she used a stick of stove wood.  The defendant is thereon guilty of a felonious homicide, unless such homicide was justifiable or excusable. If the killing, that is, the homicide, was felonious, then the defendant who caused the death, that is, committed the homicide, is guilty of some one of the degrees of murder, or some one of the degrees of manslaughter, as the degrees of murder and manslaughter, so far as they concern you in the trial, will be hereinafter fully explained.  If the killing was and is not felonious because it was and is justifiable or excusable then there has been committed no murder in any degree, and no manslaughter in any degree, and the defendant is not guilty of any crime.

            Section 4337 of the Wisconsin statutes reads as follows:  “The killing of a human being without authority of law by poison, shooting, stabbing or any other means or in any other manner is either murder, manslaughter or excusable or justifiable homicide according to the facts and circumstances of each case.”

            Section 4366 in entitled “Homicide, when justified;” and that portion of it which concerns us reads as follows:  “Such homicide is justifiable, first:  When resisting any attempt to murder such person, or to commit any felony upon him.  Second:  When committed in the lawful defense of such person when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished.

            Section 4367, defining excusable homicide, reads, so far as it concerns us in this case as follows:  “Such homicide is excusable when committed by accident and misfortune in the heat of passion upon any sudden and sufficient provocation, or upon a sudden combat, without any undue advantage being taken and without any dangerous weapon being used, and not done in a cruel or unusual manner.”

            You will observe that justifiable homicide includes a homicide committed by one acting in self-defense.  When any person is attacked or menaced with an immediate attack by another who is within striking distance and has the means and ability to at once execute it, the person attacked, or thus menaced, may act upon what are then the appearances of the degree of violence used or threatened and may graduate the force of his resistance to the apparent nature and vigor of his attack, and if he acts in good faith upon what are then the appearances of the nature and vigor of the attack and uses no more force than what is reasonably necessary to meet it, he will be justified, though such appearances subsequently proved unreal.  If a person is assaulted in such a way as to have reasonable cause for apprehending death or great bodily harm he or she is not obliged to flee or retreat and especially is this so if the person assaulted is in his own home.  He or she will be justified in defending himself and will be justified, although the danger be not real, only apparent.  Such a person will not be held responsible if he acts in self-defense from real and honest conviction induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger.  A person may not be in danger of his life or of great bodily harm before he may strike his assailant.  It is sufficient, if, in good faith, he has reasonable ground from the facts as they appear to him at the time, to apprehend a design to commit a felony or do some great personal injury and reasonable cause for believing that there is imminent danger of such design being accomplished, yet when self defense is interposed in justification, the first inquiry is as to the alleged necessity.  No right is to be abused or to be made a cloak for wrong-doing, and therefore the law limits the right of self-defense to necessity as it reasonably appears to the defendant at the time.  The taking of a human life is of such terrible significance that it cannot be justified by some slight appearance of danger.  The person striking the blows, in acting upon appearances and taking the life of his fellowman, so acts at his peril, and will not be excused unless the circumstances proven were such as would reasonably cause him to believe his act necessary to save his own life or to save himself from great personal injury.  The reasonableness of the apprehension is to be judged from the standpoint of the defendant at the time and not from that of the jury now.  So, in order to convict the defendant of any offense charged in the information that is of any of the degrees of murder or manslaughter submitted to you, by the evidence, beyond a reasonable doubt, that the defendant did not strike the blows in defending against an assault made upon her by the deceased under such circumstances as would impel a reasonable belief in her of losing her life or suffering great personal injury from said assault, and if you are not convinced by the evidence, beyond a reasonable doubt, in the manner just stated, then you should find the defendant “not guilty”.  Testimony has been received as to the good reputation of the defendant as a peaceable and law abiding citizen previous to the time it is alleged that she committed the offense charged in the information.  Such testimony of good reputation should be considered by you in connection with all the other evidence in the case, and if after such consideration, you entertain any reasonable doubt is to the guilt of the defendant, you must acquit her, but if, from all the evidence in the case, including the testimony as to the good reputation of the defendant, you are satisfied of her guilt, beyond a reasonable doubt, then it is immaterial what her reputation has heretofore been as to being a peaceable and law abiding citizen.

            If you shall determine under the evidence and these instructions, that the homicide was not justifiable, or excusable, then you should consider what one of the offenses charged in the information the defendant is, in fact, guilty of.

            Section 4337 has already been read to you but I will read it again:  “The killing of a human being, without the authority of law, by poison, shooting, stabbing or any other means or in any other manner is either murder, manslaughter or excusable or justifiable homicide, according to the facts and circumstances of each case.

            Section 4338 reads as follows:  “Such killing, when perpetrated from premeditated design to effect the death of the person killed or of any human being, shall be murder in the first degree.”  The important words here to be noted are “from premeditated design to effect the death.”  These words mean the same as “intent to kill”, a design, purpose or intent, conceived or fixed in mind, is regarded by the law as premeditated.  It is not necessary in order to constitute murder in the first degree that the intent of premeditation should have existed for any length of time before the killing, it is sufficient if there was a determination to kill distinctly formed in the mind before the fatal blow was struck.  There need not be any appreciable space of time between the formation of the intent to kill and the killing.  The law presumes that a reasonable person intends all the natural probable and usual consequences of his or her act; that when one intentionally assaults and then with a dangerous weapon likely to kill, without legal justification or excuse and the life of the party assaulted is actually destroyed in consequence of the assault, then the legal and natural presumption is that death or great bodily harm was intended, and, in such case, the law implies malice and you may infer it unless other evidence shows the contrary.  In this connection you are instructed that the stick of wood described by the evidence used as this stick of wood was used was a dangerous weapon. If, therefore, you should all become satisfied beyond a reasonable doubt, that the defendant, at the time when she struck her husband, then and there had a premeditated design to affect his death, then you should return the verdict of guilty of murder in the first degree.

            In case you do not find the defendant guilty of murder in the first degree, then I submit to you the question whether she is guilty of murder in the second degree.

            Murder in the second degree is defined by section 4339 as follows:  “Such killing, when perpetrated by any act imminently dangerous to others and evincing a depraved mind regardless of human life, without any premeditated design to affect death of the person killed or of any human being, shall be murder in the second degree.”  Homicide, in order to constitute murder in the second degree, must be committed without any premeditated design to affect the death of the person killed or any human being, and it must be perpetrated through an act imminently dangerous to others and evincing a depraved mind, regardless of human life.  By an act imminently dangerous to others is meant an act which is obviously, consciously and apparently dangerous to human life.  It must be dangerous in and of itself, as committed, and when and where committed, whether death followed or not. It is not sufficient that it may be dangerous or that death may be produced by it through misadventure or by reason of some hidden or slight danger.  It imust be an essential, apparent and obvious danger of the act producing death and furthermore, it must be of such a character as in and of itself to evince on the part of the person committing it a depraved mind, regardless of human life.  If you shall have found the defendant not guilty of murder in the first degree but shall all become satisfied, beyond a reasonable doubt, that the defendant is guilty of murder in the second degree, you should so find your verdict.

            In case you find that the defendant was not guilty of murder in the second degree then I submit to you the question of whether she is guilty of murder in the third degree, and murder in the third degree is defined by section 4345 of the Wisconsin statutes as follows:  “The killing of a human being without any design to effect death by a person engaged in the commission of any felony shall be murder in the third degree.”

            The defendant cannot be guilty of murder in the third degree unless, at the time of the killing of Albert Patzer, she was engaged in the commission of a felony.  The word “felony” as employed by this statute, means an offense punishable by imprisonment in the State’s Prison. An assault with intent to commit great bodily harm is a felony.  If the defendant killed Albert Patzer without design to effect his death while she was engaged in the commission of an assault upon him with intent to do great bodily harm then she would be guilty of murder in the third degree.  An assault with intent to do great bodily harm is not mere assault.  It is an assault accompanied by an intent to do some greater harm than is inflicted by a mere battery.  To constitute great bodily harm, as there words are used, it is not indispensable that the injuries inflicted or intended, should be permanent or of a lasting nature, but the injuries inflicted or intended or attempted, must be of a serious or grievous character, greater than an ordinary battery. In order to convict of murder in the third degree in this case, it will be essential that the state establish, beyond a reasonable doubt, that the defendant was engaged in the commission of an assault upon her husband with intent to do great bodily harm and that, while so engaged in the assault upon him, she killed him, but without design to effect his death.

            If you shall find the defendant not guilty of murder in the third degree then I submit to you the question of whether she is guilty of manslaughter in the first degree.

            Manslaughter in the first degree reads as follows, section 4346:  “The killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of any other, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to a felony, or in an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”

            You will note the difference between manslaughter in the first degree and murder in the third degree in this particular:  It is murder in the third degree when the killing of a human being, without any design to effect the death, is done by a person engaged in the commission of a felony.  It is manslaughter in the first degree when the killing of a human being without a design to effect death is by act of any other, while such other is engaged in the perpetration of, or in attempting to perpetrate a crime or misdemeanor, not amounting to a felony.

            A common assault and battery is not a felony.  It is a misdemeanor, however, and, if anyone, while committing an assault and battery upon another, kills him without a design to effect death, it comes within the provisions of section 4346, defining manslaughter in the first degree, whenever such killing would be murder at the common law.

            To constitute murder at common law when it results from a personal assault upon the deceased, not made with intent to kill, the assault must be of such a character as to necessarily endanger the life of the person assaulted.  The assault must be made with such a weapon or instrument as might endanger the life of the party assailed, or, if not made with a dangerous weapon, it must be made in such a manner to threaten great bodily harm, at least to the party assaulted.

            In case you do not find the defendant guilty of manslaughter in the first degree, then I submit to you the question whether she is guilty of manslaughter in the second degree, contrary to the provisions of section 4351, of the Wisconsin statutes, which reads as follows:  “Any person who shall unnecessarily kill another either while resisting an attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.”

            One who unnecessarily but intentionally kills his assailant while resisting an attempt on his assailant’s part to commit a felony or an assault against him is guilty of manslaughter under the provisions of this section.  If Albert Patzer made an assault upon Mrs. Patzer and she, resisting this assault, so made upon her, unnecessarily killed him, or if she killed him unnecessarily after such assault had failed, then she would be guilty of manslaughter in the second degree.

            The law having regard for human infirmity goes upon the ground that a party thus assailed and circumstances from weakness of judgment, fear or other cause may intentionally and unnecessarily kill his or her assailant in resisting his attempt to commit a felony or to do any other unlawful act and the criminality of such a killing is therefore by the statute reduced to manslaughter in the second degree.

            If the defendant is not guilty of murder in the first degree, murder in the second degree, murder in the third degree, manslaughter in the first degree or manslaughter in the second degree, then she is guilty of no offense whatever.  The burden of proof is as I have stated to you, upon the state, to affirmatively convince you, beyond a reasonable doubt, of her guilt she can not be convicted of any of the degrees of murder or manslaughter until the presumption of innocence is overcome and you are affirmatively convinced of her guilt beyond a reasonable doubt and this well applies to each and every element in each and every one of the degrees of crime of which the defendant can, in any view of the evidence be convicted in this case.

            You will give this case the serious consideration which its great importance requires, bearing in mind your oath taken at the beginning of this trial to try this case according to the evidence.  It is the duty of each juror to give careful consideration to the views his fellow jurors might have to present upon the evidence.  It should be the object of all to arrive at a common conclusion.  If you can do so without the sacrifice of any conscientious convictions, and, to that end, you should deliberate together with calmness.  You must disregard all feelings of the heart, all feelings of sympathy, all feelings of passion or prejudice and look upon this case calmly, as involving great questions of justice and great questions of right.

            Forms of verdicts embodying the conclusions which you may be permitted to reach in this case, will be sent to the jury room for your use.  You will adopt the form which fits your conclusion.  You must keep your deliberations entirely secret.  Let no one know the state thereof nor the conclusion you may arrive at until you return to the Court and deliver your verdict.  When you shall arrive at a verdict you will notify the officer in charge.