Willis v. State
Willis v. State
Opinion of the Court
The principal contention of the defendant is that the evidence adduced at trial was insufficient to support the jury verdict of guilty on the charge of attempted aggravated battery. The test on appeal of the sufficiency of the evidence to convict is whether the “evidence adduced, entitled to belief, and rationally considered by a jury was sufficient to prove the defendant’s guilt beyond a reasonable doubt.”
There is ample evidence in this record establishing the positive identification by the complaining witness of the defendant as being one of the three men who assaulted him. The victim of the assault had ample opportunity to observe the three who attacked him. He observed the three assailants as they first walked away with the woman who had stone in hand. He observed the three when they came back and walked up to him with one asking, “What happened?” He observed them during the assault or beating. He recognized the three of them, defendant included, when he saw them in the restaurant. He recognized two of the three, the defendant one of the two, when the squad car drove by them on May 13th. He testified that the lighting in the vicinity of the apartment and assault was adequate, with a 50-watt bulb eight feet away and street lights one-half block away, plus light on the street from a tavern across from the apartment. While he testified that he “never saw them before,” apparently referring to seeing them before the night of the assault, he had several opportunities to observe them on the night he was attacked, and he was positive in his identification of the defendant as one of the three assailants.
Interruption of assault.
Defendant would have us view the assault as a completed act of battery from which the three assailants walked away, rather than as an assault interrupted by the appearance of two ladies on an upstairs porch and shouts from them or someone else. Asked why the men stopped the beating and kicking, the complaining witness answered that a lady tenant, living in an upstairs apartment, and her aunt came out on the porch. He further testified that he heard somebody shout but that he could not tell, as he was being kicked and beaten, exactly where the shouts came from. It is an entirely
Intent to do great bodily harm.
Defendant’s brief contends that the state failed “to prove that this defendant had the intent to commit the crime of aggravated battery.” The intent required for conviction of the crime of aggravated battery
As an objective test to determine such subjective intent on the part of a doer of a deed, the courts rely upon a presumption. It is that “an accused is presumed to intend the natural and probable consequences of his acts, voluntarily and knowingly performed.”
In determining whether it is a reasonable inference from the facts and circumstances of this case that the defendant (1) had an intent to cause great bodily harm; and (2) committed a battery which, except for the intervention of an extraneous factor or interruption, would have resulted in great bodily harm to another human being, it is a murder case that aids in the listing of facts and circumstances relevant to the presumption of intent.
Time and place. In the murder case, the time was 9:30 a. m. on a Sunday morning; the place, the porch of the rooming house where the victim lived. In the case before us, the time was 1 a. m.; the place, the front of the building in which the victim lived in a basement apartment. In both cases, the time and place selected by the assailants was one “when it is predictable that the victim will be alone.”
Age of victim. In the murder case, the victim was an eighty-one-year-old man, living alone. In the case before us, the victim of the assault was a sixty-nine-year-old man, staying at a basement apartment. In both cases,
Nature of assault. In the murder case, the assailant clubbed the victim to the floor, jumped on him as he lay prone, and continued or renewed beating him about the head. In the case before us, one of the three assailants knocked the victim to the ground and, as he lay helpless, all three jumped on him and beat and kicked him. In both cases, we deal with a two-stage assault and, as to the second stage, “it cannot be contended that the blows were intended or required to remove the possibility of spirited resistance by the . . . victim, by then knocked prone, rendered helpless. . . .”
Type of weapon. In the murder case, the weapon of the single assailant was a family-sized soda water bottle, used to rain blows at the head of the aged victim. In the case before us, the weapons were the fists and, more injury-inflicting, the boots or shoes of the three assailants used to rain kicks at the prostrate body of their aged victim. As to both pop bottles and shoes, it is correct to observe that the harm-inflicting aspect of each “derives from the manner and circumstances surrounding its use as much as from its physical properties.”
Motive for assault. In the murder case, the motive for the assault was robbery, the defense contention being that the assailant intended to take the victim’s money, not his life. In the case before us, there is no motive apparent for a senseless and savage beating and kicking in a completely unprovoked assault. In both cases, there was an “immediate resort to violence”
Interruption of assault. In the murder case, the assailant did not stop beating the old man until he became aware that he was being observed by a bystander who was approaching, hammer in hand. In the case before us, the three assailants stopped, beating and kicking the old man at the exact time when the two ladies stepped on the porch and the shouting began. In both cases, it is an entirely reasonable inference that the beatings stopped or were interrupted by what the statute terms “the intervention of another person or some extraneous factor.”
In the murder case, considering all of the facts and circumstances involved in the assault by the single assailant, this court concluded, “That [the] evidence clearly sustains the finding of presumptive intent to kill, not rebutted by the circumstances here.”
Conduct of the trial.
Defendant additionally contends that an unprejudiced jury would have found the defendant innocent, and further contends that the jury was prejudiced by the conduct and questions of the trial court, especially when the trial court asked Mr. Kopp if he had any doubts as to the identity of his attackers. The specific reference is to the trial court asking the victim of the assault, after cross-examination had concluded, “Sir, is there any doubt in your mind today as to who the two men are who attacked you on April 18, 1970?” The complaining witness answered, “There is no doubt in my mind who they are.” No objection was made at the time of trial to this question, nor was objection entered to any other question asked or comment made by the trial court. As is often enough the case, postconviction counsel finds improper what trial counsel did not find objectionable. Clearly, the right to raise the issue on appeal was lost by the failure to object at the time of trial. However, on the right of trial courts to question witnesses, we note that the rule in this state is, “a trial court may question a witness called by the parties in order to clarify received testimony, providing the court does not overtly express his view of the matters in issue. While the court cannot function as a partisan, it may take necessary steps to aid in the discovery of truth.”
As to the role of the trial judge in the conducting of judicial proceedings, it is appropriate to recall the words of the Honorable Learned Hand who once observed: “A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert.”
Judgment affirmed.
State v. Shaw (1973), 58 Wis. 2d 25, 28, 205 N. W. 2d 132 (and cases cited).
Id. at page 29.
Zebrowski v. State (1971), 50 Wis. 2d 715, 723, 185 N. W. 2d 545, quoting Lock v. State (1966), 31 Wis. 2d 110, 114, 115, 142 N. W. 2d 183.
Zebrowski v. State, supra, at page 722, citing State v. Davidson (1969), 44 Wis. 2d 177, 199, 170 N. W. 2d 755.
Sec. 940.22, Stats., provides: “Aggravated Battery. Whoever intentionally causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another may be fined not more than $2,500 or imprisoned not more than 5 years or both.”
Sec. 939.32, Stats., provides: “Attempt. (1) Whoever attempts to commit a felony . . . may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; . . .
“(2) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some extraneous factor.”
State v. Gould (1973), 56 Wis. 2d 808, 810, 202 N. W. 2d 903.
Dunn v. State (1972), 55 Wis. 2d 192, 197, 197 N. W. 2d 749.
State v. Gould, supra, at page 812. See also: State v. Wells (1971), 51 Wis. 2d 477, 483, 187 N. W. 2d 328, stating: “Seldom is an intent to kill ascertainable from the lips of the intender. Never can it be established by a retroactive mind-reading effort to determine what the actor was thinking when he planned and executed the act. That would require a crystal ball that re-created the past rather than sought to peer into the future.”
State v. Schenk (1972), 53 Wis. 2d 327, 332, 193 N. W. 2d 26, cited with approval in State v. Gould, supra, at pages 813, 814.
State v. Gould, supra, at page 813.
State v. Schenk, supra, at page 332.
State v. Wells, supra, at page 484, quoting Farino v. State (1931), 203 Wis. 374, 380, 234 N. W. 366, stating: “‘In the absence of evidence to the contrary, he who takes the life of another by the infliction of a wound naturally and probably calculated to produce death is presumed to have intended that result and to be guilty of murder in the first degree under our statutes. . . ”
State v. Wells, supra.
Id. at pages 481, 482.
Id. at page 481.
Id. at pages 485, 486.
Id. at page 484.
Id. at page 482.
Id. at page 483.
Sec. 939.32, Stats.
State v. Wells, supra, at page 486.
State v. Nutley (1964), 24 Wis. 2d 527, 562, 129 N. W. 2d 155.
United States v. Marzano (2d Cir. 1945), 149 Fed. 2d 923, 925.
Dissenting Opinion
(dissenting). I think there is insufficient evidence to sustain a conviction for attempted aggravated battery. The trial court apparently was of the opinion that if the assault had continued without interruption Reinhold Kopp would have been seriously injured and, applying the rule that a person intends the natural consequences of his acts, Willis would have had sufficient
Aggravated battery requires an intent to cause “great bodily harm,” which is defined in sec. 939.22 (14), Stats., as bodily injury which creates “a high probability of death” or which causes “serious permanent disfigurement ... a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.” The type of injury required is illustrated in Irby v. State (1971), 49 Wis. 2d 612, 182 N. W. 2d 251, wherein the victim was stabbed in the stomach, cut in the face, inflicted with four lacerations on his right arm, taken to a hospital in an apparent unconscious condition where he remained one week, spending the first two and one-half days in intensive care because of a collapsed lung and because of the degree of bleeding caused by the severance of an intercostal artery or vein in the lower chest region, all of which resulted in a total loss of approximately one quart of blood. That no such serious injury was involved in the instant case is apparent.
In our previous cases dealing with aggravated battery, which first found its way into our law in 1955 as a part of the criminal code, the intent to do great bodily harm was inferred from the end result together with the presumption that one intends the natural and probable consequences of his acts. State v. Gould (1973), 56 Wis. 2d 808, 202 N. W. 2d 903; State v. Bronston (1959), 7 Wis. 2d 627, 97 N. W. 2d 504, rehearing denied, 98 N. W. 2d 468. In attempted aggravated battery, on the other hand, where there was no end result of great bodily harm, a
In relying upon State v. Wells (1971), 51 Wis. 2d 477, 187 N. W. 2d 328, for the drawing of somewhat irrelevant analogies, the majority opinion ignores the primary distinction between that case and this one. In Wells, a completed crime rather than an attempt was involved. The majority there drew upon a presumption that one who takes the life of another by the infliction of a wound naturally calculated to cause death in fact intends death as the result. In the instant case, the majority takes this rationale one step further by assuming the result and from that assuming an intent to cause the result assumed. This I cannot do under the rule that a defendant must be proved guilty beyond a reasonable doubt. I would accordingly reverse on this issue.
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