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vict the defendant, but, in testing its sufficiency, it must exclude the hypothesis that somebody else committed the offense. While this is the rule laid down with reference to the charge of the court on circumstantial evidence, the testimony itself can hardly be circumscribed with such limitations; the rule as to circumstantial evidence being, as to its admissibility, that every circumstance, however remote, that may tend to shed any light upon the issue in the case, is admissible. So that, in the admission of testimony. the rule, as we understand it, is more latitudinous. In other words, the circumstances themselves, upon any given theory, may not present an hypothesis entirely reasonable. Still it would not follow that such circumstances are not admissible, or that the jury would not have a right to consider them in connection with other circumstances and theories in the case. This case is of a peculiar character. Generally, in cases of a circumstantial character, some motive is assigned to the perpetrator of the homicide. In this transaction the defendant and his brother, prior to the homicide, appear to have been on the most friendly terms with the deceased. It appears that others in that community, or who had previously lived there, entertained feelings of hostility and bitter animosity against the deceased. The defendant proposed to prove such hostility on the part of two such persons, and there appears in the record some evidence of the proximity, on the day of the homicide, of other persons, whose identity was not recognized. In a case of this character, it was the duty of the court to admit every fact and circumstance that tended to establish the theory that any other person than the defendant committed the homicide. This was called for in order to enable the jury to explore every avenue consistent with the innocence of the defendant; and, in our opinion, the testimony offered should have been admitted."

In Brown v. State (1913) 74 Tex. Crim. Rep. 356, 169 S. W. 437, a prosecution for wife murder, it was held that it was not permissible to show

that, five years before the homicide, the wife objected to a lamp being lighted in the room, stating that she was afraid that a former husband would kill her.

In State v. McCoy (1892) 111 Mo. 517, 20 S. W. 240, it was said: "Defendant also offered to prove by himself declarations made to him by the deceased, that one Wood was a former lover of hers, and had come from Canada and had threatened to kill her. These declarations were not claimed to be a part of the res gestæ nor dying declarations, and were most clearly incompetent. The state cannot be bound by the admissions of persons not parties to the record."

In Woolfolk v. State (1890) 85 Ga. 69, 11 S. E. 814, the defendant was indicted and tried for the murder of his father. There were also eight other indictments against him for killing at the same time and place seven other persons. He offered to prove by his sister that she was at the father's house when the news came that one Caldwell had broken out of jail, and that she got up in the night to get some water and dropped the dipper into the bucket, and that this caused her father to jump up suddenly very much frightened. The defendant then offered to prove that her father had said that since he had put Caldwell in jail, he was very uneasy and apprehensive for fear Caldwell and his folks or friends would do him injury. This explanation was offered as the explanation of his fright. Testimony was also offered to prove that the deceased had expressed considerable apprehension of danger from the negroes on his place. It was held that there was no error in refusing to admit this testimony. The court said: "It was immaterial and irrelevant, and would shed no light upon the real question in the case, as to who was the perpetrator of the crime. . . Certainly the fright of an old man, suddenly awakened by the dropping of a dipper in a bucket, and his apprehension of injury from a person he had prosecuted and sent to the penitentiary, could not be admissible. When the case was here before, we held that 'declarations

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made by one of the persons killed to her father, nearly a week before the killing, as to her fear that her life was in danger from the defendant, and that from the way he treated her she expected to be killed, were inadmissible.' Woolfolk v. State (1888) 81 Ga. 552, 8 S. E. 724 (3). Still less would apprehensions as to a person other than the defendant, not connected by other evidence with the crime, be admissible. It may have been the theory of the defendant that his father and his family were killed by the negroes on the place, but it has been his misfortune that he has been unable to show it, or by any proper evidence connect any of them with the killing."

In State v. Patrick (1856) 48 N. C. (3 Jones L.) 443, the defendant on a trial for murder offered evidence to prove that the deceased had declared, some time before his death, that he was afraid of a person other than the defendant, and expected that person would kill him yet. It was held that there was no principle of law under which such declarations could have been received.

In Tatum v. State (1901) 131 Ala. 32, 31 So. 369, a trial for murder, the defendant offered to prove that on the morning of the killing the witness. asked the deceased why he was carrying a pistol, and that deceased replied to her that one Rawlinson had threatened to kill him on sight, because of some attentions the deceased had been paying to a certain woman; that Rawlinson had snapped a gun in the face of the deceased, and that the defendant had armed himself and was prepared to defend himself against Rawlinson in an emergency. The trial court excluded the evidence from the consideration of the jury, and in sustaining this ruling it was said: "In the absence of any testimony to connect Rawlinson with the crime, proof

of a motive on his part to kill the deceased was not admissible to exculpate the defendant. Baker v. State (1898) 122 Ala. 1, 26 So. 194; Josephine v. State (1860) 39 Miss. 613. Rawlinson's motives, however malignant, were, while quiescent, not at all inconsistent with similar motives on defendant's part and his actual commission of the offense. For this reason the court properly refused to admit evidence to show deceased had prosecuted Rawlinson for an assault growing out of their attentions to a woman."

In Goodlett v. State (1902) 136 Ala. 39, 33 So. 892, the defendant offered to prove declarations made by the deceased that a person other than the defendant had threatened her life. The evidence was held to be inadmissible, the court saying: "The evidence offered by defendant of the declarations of the deceased that Simon Crook had threatened her life was the barest hearsay and inadmissible. Had Simon admitted to the witness that he committed the homicide, his admission or confession would have been incompetent. West v. State (1884) 76 Ala. 98; Snow v. State (1877) 58 Ala. 372. The fact that the evidence offered was a declaration of the deceased to the witness, instead of a statement by Simon to the witness, does not relieve it from being hearsay. Tatum v. State (Ala.) supra.

In State v. Duncan (1846) 28 N. C. (6 Ired. L.) 236, wherein the prisoner offered to prove that certain other persons harbored ill will against the deceased and had threatened him, it was held that such evidence was inadmissible as mere hearsay, and moreover could not tend to establish, under the circumstances, that the defendant, who was charged with being an ac cessory before the fact, was not also guilty as charged. W. M. C.

(Wis., 172 N. W. 734.)


STATE OF WISCONSIN et al., Appts.,


FRED C. EBELING, Exr., etc., of John H. Ebeling, Deceased, et al.,


Wisconsin Supreme Court - May 27, 1919.

(- Wis. 172 N. W. 734.)

Constitutional law - reasonable classification - tax on gift within specified time of death.

1. The legislature may constitutionally tax all gifts made within six years of death, without taxing other gifts inter vivos, since it is based upon reasonable classification.

[See note on this question beginning on page 1523.]

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APPEAL by the state and county from a judgment of the Circuit Court for Brown County (Graass, J.) affirming a judgment of the County Court, determining that certain gifts were not subject to inheritance tax in proceedings to determine inheritance. Reversed.

Statement by Owen, J.: The county court of Brown county, in determining the amount upon which inheritance taxes imposed upon the estate of John H. Ebeling, deceased, should be computed, deducted the amount of the Federal estate tax imposed upon the estate, and determined that certain gifts made by decedent within six years prior to his death were not subject to an inheritance tax. The state and county appealed from the judgment to the circuit court for Brown county, where the judgment of the county court was affirmed.

From such judgment the state and county appealed.

The estate was valued at $332,819.33. Twelve thousand seven hundred and seventy-nine dollars and thirty-seven cents, the amount of the Federal estate tax, was deducted from this amount in determining the amount upon which the inheritance tax should be computed. The deceased died January 15, 1918. He had three children. Within six years prior to his death he made gifts to them as follows: December 22, 1912, $1,000 to each; November 22, 1912, $1,000 to each; October 31,

1913, $500 to each; December, 1913, $200 to each; May, 1916, $500 to each; June 30, 1917, $10,000 to each; August 18, 1917, $5,318.33 to each; and October 1, 1917, $10,000 to each.

The court found that neither of said gifts, nor all of them combined, constituted a material part of the estate of said testator; that neither of said gifts nor all of them together was or were made in the nature of a final disposition or distribution of said testator's estate; that no one of said gifts was made by said testator in contemplation of death; and, further, that if the law raised any presumption as to any of such gifts that they were made in contemplation of death, said presumption is fully overcome by the evidence in the case.

Messrs. John J. Blaine, Attorney General, E. E. Brossard, Assistant Attorney General, and William Cook for appellants.

Mr. Samuel D. Hastings, for respondents:

Only gifts made in contemplation of death are taxable.

Nunnemacher v. State, 129 Wis. 190, 9 L.R.A. (N.S.) 121, 108 N. W. 627, 9 Ann. Cas. 711; Knowlton v. Moore, 178 U. S. 56, 44 L. ed. 975, 20 Sup. Ct. Rep. 747.

A statute imposing a tax is to be strictly construed in favor of the citi


Re Hodges, 86 Misc. 367, 148 N. Y. Supp. 424; Re Thorne, 44 App. Div. 8, 60 N. Y. Supp. 419; Re Vassar, 127 N. Y. 1, 27 N. E. 394; Re Bronson, 150 N. Y. 1, 34 L.R.A. 238, 55 Am. St. Rep. 632, 44 N. E. 707; State v. Pullman's Palace Car Co. 64 Wis. 89, 23 N. W. 871; State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140; Re Fayerweather, 143 N. Y. 114, 38 N. E. 278.

If the amendment is construed as passing over the line dividing gifts made in contemplation of death, and those not made in contemplation of death, and imposing a tax upon some of the latter, but not all, no valid classification is made of those taxed and those not taxed.

Black v. State, 113 Wis. 205, 90 Am. St. Rep. 853, 89 N. W. 522; Nunnemacher v. State, supra.

The classification by time is not reasonable.

Black v. State, 113 Wis. 205, 90 Am. St. Rep. 853, 89 N. W. 522; Re Watson, 186 App. Div. 48, 174 N. Y. Supp. 19.

Unless the statute clearly defines what property is subject to taxation, the court must hold it void for uncer tainty.

Norton v. Reed, 6 Wis. 522.

Whether or not a gift or transfer was made in contemplation of death is a question of fact, a judicial question to be decided by the court.

Blackmore & B. Inheritance Tax, 101; State v. Thompson (Re Dessert) 154 Wis. 320, 46 L.R.A. (N.S.) 790, 142 N. W. 647, Ann. Cas. 1915B, 1084.

In construing the statute as to what is meant by "material parts," and "in nature of final distribution," all doubts are to be resolved in favor of the citi


State v. Pullman's Palace Car Co. 64 Wis. 103, 23 N. W. 871; Smith v. Browning, 225 N. Y. 358, 122 N. E. 219; State ex rel. Wickham v. Nygaard, 159 Wis. 403, 150 N. W. 513, Ann. Cas. 1917A, 1065.

None of the gifts in question were made in contemplation of death.

State v. Pabst, 139 Wis. 561, 121 N. W. 351; State v. Thompson, supra; People v. Burkhalter, 247 Ill. 600, 139 Am. St. Rep. 351, 93 N. E. 379; Re Spaulding, 49 App. Div. 541, 63 N. Y. Supp. 694; Re Mahlstedt, 67 App. Div. 176, 73 N. Y. Supp. 818; Re Graves, 52 Misc. 433, 103 N. Y. Supp. 571; Re Bullard, 76 App. Div. 207, 78 N. Y. Supp. 491; People v. Kelley, 218 Ill. 509, 75 N. E. 1038; Conway v. State,

Ind. App., 120 N. E. 719.

In ascertaining the residuary estate, the United States estate tax is to be deducted as any other charge against the estate.

State ex rel. Smith v. Probate Ct. 139 Minn. 210, 166 N. W. 125; Corbin v. Townshend, 92 Conn. 501, 103 Atl. 647; People v. Pasfield, 284 Ill. 450, 120 N. E. 286; Re Roebling, N. J. Eq. —, 104 Atl. 295; Knight's Estate, 261 Pa. 537, 104 Atl. 765; Hooper v. Shaw, 176 Mass. 190, 57 N. E. 361; Hooper v. Bradford, 178 Mass. 95, 59 N. E. 678.

Owen, J., delivered the opinion of the court:

It has been held in Re Week, Wis., 172 N. W. 732, decided herewith, that the Fed- Tax-inherieral estate tax is tance-deduction not a proper deduc- of Federal tax. tion in determining the amount upon

(Wis. 172 N. W. 734.) which the state inheritance tax should be computed. The county court erroneously allowed this deduction.

Prior to the enactment of chapter 643, Laws of 1913, § 1087-1, Stat., imposed a tax upon three classes of transfers of property: (1) By will; (2) by intestate laws; and (3) by gifts made in contemplation of death of the donor or intended to take effect in possession or enjoyment at or after such death. Chapter 643 of the Laws of 1913 amended this section by adding at the end of subdivision 3 the following: "Every transfer by deed, grant, bargain, sale or gift, made within six years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall be construed to have been made in contemplation of death within the meaning of this section."

The state contends that the amendment makes every gift of a material part of the estate of a deceased person, when made within six years prior to death, subject to an inheritance tax. It is the contention of the respondents that the amendment does not have such conclusive effect, and that it accomplishes no more than to make the gift, when made within six years prior to death, prima facie evidence of the fact that it was made in contemplation of death, thereby shifting the burden of proof upon that question.

In the case of State v. Thompson (Re Dessert) 154 Wis. 320, 46 L.R.A. (N.S.) 790, 142 N. W. 647, Ann. Cas. 1915B, 1084, this court had under consideration the question of inheritance taxes due from the estate of one Joseph Dessert, who died at the age of ninety-two. Practically his entire estate was devised to his only daughter and sole heir, Stella D. Thompson. She took by the will about $200,000. During the last six years of his life he gave her approximately a half million dollars, mainly in two gifts, one made

4 A.L.R-96.

three years and the other four and one-half years prior to his death. This court held that the gifts were not subject to inheritance taxes. The circumstances of that case forcibly brought to the attention of the legislature the fact that, after a person had attained the age of eighty-nine years, an age when he could not expect to live many more years, when his thoughts naturally were concerned rather with the disposition of property already accumulated than with the accumulation of more, he could bestow his property upon the objects of his bounty, and thus evade the inheritance tax. This decision was rendered May 31, 1913. The legislature was then in session. Ten days thereafter Senate Bill No. 575 was introduced by the joint committee on finance. This bill, without amendment, was approved July 21st, and became chapter 643 of the Laws of 1913.

Now the question is this: Did the legislature intend to make gifts and transfers of property made within six years prior to death, absolutely taxable, or was it simply providing a rule of of evidence? There can be little doubt that the legislation was prompted by the decision in the Thompson Case. That was a case in which the state was a party. It was regarded as an important case, not only because of the amount involved, but as a precedent. The contention of the state was rejected by the court. It seems quite reasonable to suppose that the legislature, in enacting the amendment, intended to do what it could in the way of molding into law the doctrine contended for by the state in that case. If it intended to make the gift or transfer occupying within six years prior to death only prima facie evidence of the fact that it was made in contemplation of death, the legislative response was certainly weak and puerile. In cases where the facts are easily ascertainable, the burden of proof is of the merest advantage. It is only in cases where the proof is difficult to obtain, such as violations of the Excise Laws,

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