Cheatham v. State, 76-453-CR

Decision Date03 October 1978
Docket NumberNo. 76-453-CR,76-453-CR
PartiesJonathan Andrew CHEATHAM, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Jonathan Andrew Cheatham, plaintiff in error (hereinafter defendant), was charged with causing injury by conduct regardless of life contrary to sec. 940.23, Stats. Following a jury trial he was convicted and sentenced to an indeterminate term of not more than four years. A writ of error issued to review the judgment of conviction.

Melvin F. Greenberg, Asst. State Public Defender, with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Pamela Magee-Heilprin, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

HANSEN, Justice.

This review presents two issues: (1) whether the evidence was sufficient to support a finding that the victim's injury constituted "great bodily harm" as defined by sec. 939.22(14), Stats.; (2) whether the definition of "great bodily harm" set forth in sec. 939.22(14) is unconstitutionally vague either on its face or as interpreted by this court in La Barge v. State, 74 Wis.2d 327, 246 N.W.2d 794 (1976).

Roberta Lynn Rowe, the victim, was walking in the vicinity of Wisconsin and Johnson streets in the city of Madison between 10:30 and 11 p. m. on the night of August 23, 1975. Shortly after becoming aware that a man was walking behind her, she was struck on the head from behind. She fell and her assailant grabbed her by the wrists and dragged her from the sidewalk onto the adjacent empty lot. He then dropped her wrists, picked up her legs and turned her around. At this point several people came to her aid and the assailant left the scene. Although none of the witnesses saw the assailant strike the victim, several had seen him drag her and he spoke to the first two of the witnesses to arrive before he left the scene. One of the witnesses followed the assailant for several blocks. The witnesses were able to give police a description of the assailant, and three of the witnesses subsequently identified the defendant as the assailant while the defendant was being held by police as a suspect several blocks from the scene of the attack. The victim identified the defendant as the assailant from a photo array two days after the attack while she was still hospitalized.

At trial, the attending physician testified that the victim sustained a depressed skull fracture which cut into a blood vessel in the brain and caused a neurological impairment. The fracture required surgery in which the fractured portion of the skull was removed, leaving a hole in the skull approximately between the size of a quarter and a half-dollar. The doctor testified that the victim had completely recovered and that no permanent effects, other than the hole which would not need repair, were likely. The doctor testified that the injury could have caused death, was a severe and serious bodily injury, and that the neurological deficit would have been permanent without the surgery.

The victim testified that she was taken by ambulance to the hospital emergency room, x-rays were taken and she went into surgery. She awoke following surgery at 6 a. m. At that time she experienced a loss in feeling on her right side which lasted for the next six days. She testified that at the time of trial she suffered no effects from the injury other than the fact that she had a hole in her skull.

The defendant relied upon an alibi as a defense. Sec. 971.23(8), Stats. He testified he had spent the evening playing basketball with a friend and had passed the Capitol Square, where he was stopped by the police, on the way home. His testimony was supported by the testimony of two witnesses.


The defendant was convicted of a violation of sec. 940.23, Stats., which reads:

". . . 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."

The element of "great bodily harm" required for a violation of this section is defined as follows in sec. 939.22(14), Stats.:

". . . 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."

In State v. Bronston, 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468 (1959), an aggravated battery case, this court held that Ejusdem generis, a rule of statutory construction, was applicable to the statutory definition. Under that rule the injury would have to be in the same category as one of the types of injury specifically enumerated in the statute. The defendant argues that since the testimony here did not show that there was a high probability of death, or a serious permanent disfigurement, or a permanent or protracted loss or impairment of the function of a bodily member or organ, the injury here did not, as a matter of law, constitute "great bodily harm."

Bronston also held that where the facts of the nature of the injury are undisputed it is a question of law whether the injury is "great bodily harm." In Bronston this court found, as a matter of law, that a two-inch scalp laceration which required four sutures and a few hours hospitalization and which resulted in some headaches and traumatic arthritic pain for a time afterwards did not constitute "great bodily harm." However, in dictum, the court said, discussing potential injuries, that it was immaterial that the blow might have caused a fractured skull, suggesting that a fractured skull would be viewed differently.

This court next considered the "great bodily harm" clause in Irby v. State, 49 Wis.2d 612, 182 N.W.2d 251 (1971), also an aggravated battery case. Irby held that where there was a factual dispute regarding the seriousness of the injury which required expert medical testimony to resolve, the issue of "great bodily harm" was one of fact for the jury. Irby held that evidence that the victim suffered a chest wound which caused great loss of blood and was hospitalized for six days, 21/2 in intensive care, was sufficient for the jury to find that the injury constituted "great bodily harm."

Bronston And Irby were the controlling cases on this issue at the time of defendant's trial. The trial judge instructed the jury on the elements of the crime and gave the statutory definition of "great bodily harm" without further comment on the meaning of that definition or the application of the rule of Ejusdem generis.

The defendant contends that there was no factual dispute regarding the nature and extent of the injury which would justify submission to the jury under Irby. Since the injury, the defendant argues, was not Ejusdem generis with the enumerated injuries the trial court should have followed Bronston and decided, as a matter of law, that the injury was not "great bodily harm."

In Irby, Supra, this court stated at page 618, 182 N.W.2d at page 254:

". . . Under the facts of this case the doctor's testimony was necessary to determine the seriousness of the wounds, and it was within the province of the jury to determine whether, as a matter of fact, these wounds caused great bodily harm. . . ."

This statement indicates that a jury question exists whenever expert medical testimony is necessary to determine the seriousness of the injury.

Expert medical testimony was given in this case to explain the nature and extent of the victim's injuries. The victim was permitted to testify only generally as to the injury she suffered and the procedures at the hospital. Although the defendant's attorney did not ask any questions concerning the injury itself when cross-examining the doctor, he did ask several questions directed to determining how much bleeding there would be with such an injury. The testimony of the lay witnesses indicated that the bleeding was either minimal or unnoticed; however, the defendant's lawyer introduced expert medical testimony from the preliminary hearing to the effect that initially there would be "a fair amount of blood." To the extent that the amount of bleeding was in dispute, a question of fact existed regarding the severity of the injury which required submission of the cause to the jury under Bronston and Irby. Likewise, as in Irby, expert medical testimony was given to aid in determining the severity of the injury, again requiring submission to the jury.

Since the issue was properly presented to the jury, the question that remains is whether, under the evidence presented, the jury could find that the injury constituted "great bodily harm."

Ejusdem generis means "(o)f the same kind," Ballentine, Law Dictionary (2d ed. 1948), p. 424, and this rule of construction requires that the meaning of a general phrase following the enumeration of specific classes is limited to "things . . . of the same kind, class, character, or nature" as those enumerated. 73 Am.Jur.2d, Statutes, [85 Wis.2d 119] p. 408, sec. 214. Applying this rule, the evidence must have been sufficient for the jury to find that the victim's injury here was of the same kind, class, character or nature as an injury which creates a high probability of death, causes serious permanent disfigurement or causes permanent or protracted loss or impairment of the function of any bodily member or organ. The jury would not have to find that the injury was in fact one of the enumerated injuries, only that it was of the same kind, class, character or nature.

Based on the evidence given at trial the jury could have reasonably found that a skull fracture which the doctor said could have caused death was of the same nature as an injury that creates a high probability of death. The jury could have found that a skull fracture which requires...

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