La Barge v. State

Decision Date16 November 1976
Docket NumberNo. 75--563--CR,75--563--CR
PartiesJerry A. LA BARGE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
CourtWisconsin Supreme Court

Howard B. Eisenberg, State Public Defender, for plaintiff-in-error.

Betty R. Brown, Asst. Atty. Gen., with whom on the brief was Bronson C. LaFollette, Atty. Gen., for defendant-in-error.


The defendant, Jerry A. La Barge, was found guilty by a jury of injury by conduct regardless of life contrary to sec. 940.23, Stats. He was sentenced to a term not to exceed four years at the Green Bay Reformatory on July 8, 1975. Postconviction motions were denied on November 25, 1975. The writs of error are directed to the judgment of conviction and the order denying postconviction relief.

The State Public Defender attacks the conviction on three grounds. It is argued that the statute under which the defendant was charged, sec. 940.23, Stats., is inapplicable to the present situation, since the victim did not sustain 'great bodily harm,' as such injury is defined in sec. 939.22(14), but only superficial injuries.

It is also contended that the use at trial of testimony elicited at the preliminary hearing was permitted by the trial court without sufficient evidence of due diligence on the part of the state to produce the witness, and that, therefore, the defendant was denied the right of confrontation guaranteed by the constitutions of the United States and of the State of Wisconsin.

Additionally, it is argued that hearsay testimony implicating the defendant was improperly admitted into evidence, where the facts did not show a proper foundation for its admission as an 'excited utterance.'

After a perusal of the record, we conclude that each of these assertions is unfounded, and accordingly we affirm.

The record shows that on February 15, 1975, the defendant La Barge and Merilee Maulson were living together. This relationship was apparently of long standing, for the record indicates that Jerry La Barge was the father of one of Merilee's children. Because of altercations between the two, Merilee concluded that she was going to leave the defendant and return to Chicago with their child. An argument followed; and, at some time, according to the testimony of Merilee Maulson, the defendant produced a butcher knife, threatened to kill her, and stated, 'I'll cut your face up so nobody else will want you.' There is evidence to show that he then cut and stabbed her.

Louise Vetterneck testified at trial that when she came to the door to pick up Merilee to drive her to Chicago, she heard Merilee 'hollering.' The door was locked, and she was unable to get in. Vetterneck then went to get the police, who were parked a short distance away. She stated that, when she returned within five minutes, Merilee Maulson was running from the house. Vetterneck stated that she picked up Merilee within 20 or 30 feet down the road, got her into the car, and took her to the hospital. Vetterneck said she could see cuts on Merilee's face and ear and that she was covered with blood.

Shortly after getting into the Vetterneck car, Merilee said, 'Jerry did this to me.' It was this statement by Maulson which Vetterneck was permitted to recount at the trial.

At the trial the physician who treated Merilee testified that he sutured six lacerations and six stab wounds. The stab wounds varied in depth from one to three and one-half inches. He testified that Merilee Maulson had sustained a number of other lacerations, but only 12 wounds required suturing. He was unable to state how many additional wounds were inflicted. He stated that he probed the wounds and was unable to determine initially whether any internal organs had been penetrated.

Merilee was hospitalized for six days, primarily for the purpose of determining whether any complications would ensue that would indicate the penetration of internal organs. No complications arose, and accordingly the physician testified at trial that no internal organs were penetrated. He stated that at no time was she in imminent danger of death, that her blood pressure was normal, and that she required no transfusions. He did state, however, that extensive suturing was necessary to close the wounds. He gave the opinion that some scarring would surely result, but in view of the fact that he did not examine her subsequent to her original hospitalization, he was unable to testify to any permanent disfigurement.

The State Public Defender contends that the injuries sustained by Merilee did not constitute 'great bodily harm,' within the meaning of the Criminal Code. Sec. 940.23, Stats., provides:

'Injury by conduct regardless of life. Whoever causes great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not more than 10 years.'

'Great bodily harm' is defined by sec. 939.22(14), Stats.:

"Great bodily harm' means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.'

The State Public Defender relies primarily upon the rationale of State v. Bronston (1959), 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468. In Bronston, the defendant was found guilty of aggravated battery under the then existing statute, sec. 940.22, Stats. (1957), which described that offense as 'intentionally caus(ing) great bodily harm to another.' 'Great bodily harm' was defined in 1957 exactly as now. In Bronston, the victim sustained a two-inch laceration to the scalp that required four sutures to close. The court concluded in Bronston that, as a matter of law, the injuries there sustained did not constitute 'great bodily harm.'

It reached that conclusion by the invocation of two commonly accepted rules of statutory construction: The first, that penal statutes are to be interpreted strictly against the state and in favor of the accused; and, the second, that the canon of statutory interpretation, ejusdem generis, was applicable. It concluded that the relatively minor injuries sustained by the victim in Bronston were not in the same category or of the same kind as the enumerated injuries which created a high probability of death, permanent disfigurement, or the loss or impairment of an organ or bodily function. There is no disagreement with the conclusion the court reached in Bronston.

Our study of the legislative history of the particular statute leads, however, to the conclusion that the phrase, 'or other serious bodily injury,' was designed as an intentional broadening of the scope of the statute to include bodily injuries which were serious, although not of the same type or category as those recited in the statute.

When a statute is passed which enumerates several specific items encompassed in the purview of the statute and then follows the specifics with a general phrase, it is reasonable to conclude that the general phrase was intended to cover only other items that fall within the general category of those enumerated. In respect to such a statute, the proper resolution of the problem of interpretation is set forth in Sutherland, Statutory Construction (4th ed.), sec. 47.17, p. 104:

'The resolution of this conflict by ascribing to the series its natural meaning and by restricting the meaning of the general words to things ejusdem generis with the series is justified on the ground that had the legislature intended the general words to be used in their unrestricted sense, it would have made no mention of the particular words, but would have used 'only one compendious' expression.'

However, as stated in that same treatise, that approach is not without exception. Sutherland states, sec. 47.22, p. 118:

'A final qualification on the doctrine is that the general words are not restricted in meaning to objects ejusdem generis if there is a clear manifestation of a contrary intent or purport.'

In United States v. Baranski (7th Cir. 1973), 484 F.2d 556, the court of appeals declined to apply ejusdem generis to a statute knowingly hindering or interfering or attempting to interfere with government property 'by force or violence or otherwise.' (Emphasis supplied.) The court concluded, after studying the statutory history, that the phrase 'or otherwise' had been added by amendment. It concluded that, where the general phrase was not a part of the original statute but was subsequently acdded, the Congress intended the added phrase to have a distinct meaning, and must have intended to broaden the scope of the statute. Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936), and United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457 (1950), follow the same rule where the catch-all phrase has been added by a subsequent amendment.

The legislative history of sec. 939.22(14), Stats., shows that the definition of 'great bodily harm' has undergone precisely that type of amendment. 'Great bodily harm' appeared in the Criminal Code for the first time in ch. 623, Laws of 1953, effective July 1, 1955, and was defined in sec. 339.22(12). That definition did not contain the last phrase that now appears in the statute. The phrase, 'or other serious bodily injury,' was added to the definition by the Laws of 1955, ch. 696, effective July 1, 1956. The original definition, hence, was in effect for one year prior to the time the amendment became effective.

A review of the minutes of the interim action of the Legislative Council Committee considering the revision of the Criminal Code bears out the conclusion that the phrase, 'other serious bodily injury,' was intended to broaden the type of injury that was to be encompassed in the definition. The minutes of the meeting of April 30, 1954, reveal a discussion of the definition...

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