Bussard v. State
| Decision Date | 07 November 1939 |
| Citation | 288 N.W. 187,233 Wis. 11 |
| Parties | BUSSARD v. STATE. |
| Court | Wisconsin Supreme Court |
Writ of Error to the Municipal Court for Milwaukee County; Max Nohl, Judge, presiding.
Vernon Bussard was convicted of manslaughter in the fourth degree, and he brings error.-[By Editorial Staff.]
Reversed and remanded, with directions to discharge defendant.
The plaintiff in error, hereinafter called the defendant, was arrested on a criminal complaint on May 16, 1939. He was charged with manslaughter, had a preliminary examination and was bound over to the municipal court for trial. On May 22, 1939, the district attorney for Milwaukee County filed an information, charging that the defendant did on the 20th day of February, 1939, unlawfully and feloniously slay and kill one Alton G. Higgins. There was a trial to the court. The court found the defendant guilty of manslaughter in the fourth degree pursuant to sec. 340.26, Wisconsin Stats., and adjudged that he pay a fine of $300 and costs. From the sentence and judgment of the court the defendant brings this writ of error.A. L. Tietelbaum, of Milwaukee (A. M. Chudnow, of Milwaukee, of counsel), for plaintiff in error.
John E. Martin, Atty. Gen., and Herbert J. Steffes, Dist. Atty., and Gene L. Green, Asst. Dist. Atty., both of Milwaukee, for the State.
The sole question raised in this case is whether the evidence sustains the finding of the trial court that the defendant was guilty of gross negligence within the meaning of that term as used in sec. 340.26, Wisconsin Stats. Sec. 340.26 is as follows: “Every other killing of a human being by the act, procurement or gross negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter or some other degree, shall be deemed manslaughter in the fourth degree.”
Prior to the enactment of ch. 483 of the Laws of 1929, this section read as follows: “Every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.” St.1927, § 340.26.
This amendment was adopted subsequent to the decision of this Court in Clemens v. State, 1921, 176 Wis. 289, 185 N.W. 209, 217, 21 A.L.R. 1490. In the Clemens case culpable negligence was held to mean ordinary negligence as defined in this state. It was there pointed out that as a result of mere inadvertence a person might in this state be convicted of the crime of manslaughter with the necessary serious consequences to himself and his family. It was suggested that “at the earliest time available such changes be made in the statutes of our state by the Legislature as will require, in order to convict of manslaughter in the fourth degree, gross negligence, as defined in the decisions of this court.”
[1][2] Under the circumstances we must assume that the legislature in adopting the amendment of 1929, used the term “gross negligence” in that sense. The definition of gross negligence referred to in the Clemens case is that found in Jorgenson v. C. & N. W. R. Co., 1913, 153 Wis. 108, 116, 140 N.W. 1088, 1091. It is as follows: “Gross negligence has received a very certain and definite meaning in the jurisprudence of this state, somewhat different from the meaning given to it in other states; it is not inadvertence in any degree; there must be present either willful intent to injure, or that wanton and reckless disregard of the rights of others and the consequences of the act to himself, as well as to others, which the law deems equivalent to an intent to injure.”
[3] The first question presented then is whether the evidence sustains the finding of gross negligence. In a consideration of this question, the court having found the defendant guilty, we shall refer to the facts tending most strongly to support the court's findings.
[4] On the evening of February 19, 1939, at about 11:25 P. M., Robert Kermott, Alton Higgins, Fred Somer and Roy Johnson were pushing a car operated by Kermott in a southerly direction on North Thirty-Fifth Street between West Vliet and West McKinley Streets. It was proceeding at a speed...
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Safran's Estate, Matter of, 80-108
...the original determination of what constituted gross negligence was set forth in a civil case, this court said in Bussard v. State, 233 Wis. 11, 13, 288 N.W. 187 (1939), a criminal case, "we must assume that the legislature, in adopting the amendment of 1929, used the term 'gross negligence......
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Hart v. State
...to require gross negligence. The suggested change was made, and the amended statute was considered by the court in Bussard v. State, 233 Wis. 11, 288 N.W. 187 (1939), a case in which the defendant had, through what appeared to be pure inattention, collided with a stopped vehicle and killed ......
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Matter of Szegedi
...manslaughter in the fourth degree. The development of this section of the Wisconsin Criminal Code is set forth in Bussard v. State, 233 Wis. 11, 288 N.W. 187 (1939). Bussard was convicted of manslaughter in the fourth degree under section 340.26, which provided as Every other killing of a h......
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People v. Licitra
...caused the death in order to be guilty of manslaughter (compare Commonwealth v. Pierce, 138 Mass. 165 (Holmes, J.), with Bussard v. State, 233 Wis. 11, 288 N.W. 187; see, also, People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d Much of the confusion was dissipated with the adoptio......