Drane v. State

Decision Date30 November 1965
Citation29 Wis.2d 208,138 N.W.2d 273
PartiesUpton DRANE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Joseph Willams and his wife Mamie arrived at Curley's Tap, a tavern located on Third street in Milwaukee, sometime between 8 and 9 on the night of February 3, 1962. Mrs. Williams took a seat at the bar to the right of Mrs. Arretter Sloan and Williams stood at the bar somewhat behind and between the two women. Plaintiff in error (hereinafter defendant), Upton Drane, entered the tavern, walked up behind Mrs. Sloan, and ordered a bottle of liquor. While standing there, he began to wave a $5 bill about Mrs. Sloan's face.

Although there was disagreement on other matters the evidence (except for defendant's testimony) was substantial uncontroverted as to the ensuing events. Defendant made some vile remarks to Mrs. Sloan and Williams asked him to watch his language in the presence of the women. The two had words; Williams took off his coat and began to advance on defendant. Drane retreated backwards toward the front door and at the same time transferred a gun from under his coat to his coat pocket. At this point the testimony varies.

Three patrons, Vermont Metcalfe, William Hodnett, and Ezell Shackelford, each testified that defendant shot Williams in the tavern near the door when the two men were three or fout feet apart. Mrs. Metcalf and Hodnett said that Williams then grabbed defendant and wrestled him out the front door. Shackelford had turned his back and did not see this. Mrs. Williams and Mrs. Sloan, who had moved to the back of the tavern when defendant put the gun in his pocket, and who did not actually see the shooting, stated that they knew from the sound that the shots were fired inside the tavern. Mrs. Williams later saw blood spots on the tavern floor. Mrs. Mattie Story, who was waiting for defendant outside in a car with her husband, asserted that Williams was shot as the men fought in the street Defendant could not remember shooting Williams in the street but denied that he had fired in the tavern.

Mrs. Williams further testified that defendant responded to Williams' admonition directed toward Drane's coarse talk with a volley of profanity including a threat to 'bust your * * * heart out.' Mrs. Sloan just heard an exchange of remarks. Defendant testified, in effect, that Williams just turned on him out of a clear blue sky. Hodnett and Mrs. Sloan agreed that the men were about eight feet apart when Williams removed his coat, and Mrs. Metcalfe thought the distance was ten or twelve feet. Hodnett, Mrs. Metcalfe, and Shackelford were all certain that they never were closer than three or four feet to each other. Shackelford, Hodnett, and Mrs. Sloan said that Williams never struck or touched defendant, but Vermont Metcalfe claimed that Williams pulled a knife with his right hand. Mrs. Sloan denied that he had anything in his hand. No knife was ever found. Mrs. Metcalfe did not see the alleged knife again after the shots were fired and added that Williams grabbed defendant with his right hand (and his own abdomen with his left) after he was shot. She also stated that her back was to Williams as he approached. As Williams moved toward defendant, Hodnett and Mrs. Metcalfe heard him claim (in quite down-to-earth terms) that defendant had been bothering his sife. Hodnett, Shackelford, and Mrs. Metcalfe said that defendant had warned Williams not to come any further.

Williams was shot twice but did not die of the wounds until March 12, 1962. Defendant fled after the shooting, but was apprehended in February of 1964, and charged with first-degree murder. He waived a jury trial, was found guilty of the included crime of second-degree murder (sec. 940.02, Stats.) by the court, and sentenced to a term of not more than 25 years.

Henry L. Hillard, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Richard B. Surges, First Asst. Dist. Atty., Milwaukee, for defendant in error.

WILKIE, Justice.

The sole question presented on this review is whether there is sufficient evidence to support the court in finding defendant guilty of second-degree murder. Defendant does not deny shooting Williams. He argues that since there was evidence that Williams threatened him and advanced toward him with a knife, he was guilty, at best, of manslaughter pursuant to sec. 940.05(1), (2), or (4), Stats. 1 In essence, defendant contends that Williams just turned on him and this...

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9 cases
  • State v. Hamdan
    • United States
    • Wisconsin Supreme Court
    • 15 July 2003
    ...that pose potential dangers. See State v. Olsen, 99 Wis. 2d 572, 576, 299 N.W.2d 632 (Ct. App. 1980); see also Drane v. State, 29 Wis. 2d 208, 211 n.4, 138 N.W.2d 273 (1965). The existence of random, albeit frequent, criminal conduct in one's vicinity does not qualify as a "natural physical......
  • State v. Clarke
    • United States
    • Wisconsin Supreme Court
    • 3 October 1967
    ...of witnesses is peculiarly for the trier of fact to determine. State v. Cohen (1966), 31 Wis.2d 97, 142 N.W.2d 161; Drane v. State (1965), 29 Wis.2d 208, 138 N.W.2d 273; Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101. It cannot be said here that prosecutrix's failure to notice defe......
  • Weeden v. City of Beloit
    • United States
    • Wisconsin Supreme Court
    • 1 February 1966
    ...Wis.2d 525, 538, 133 N.W.2d 335.4 Murdock v. Beloit, D. L. & J. R. Co. (1911), 147 Wis. 100, 103, 132 N.W. 979, 981.5 Drane v. State (1965), 29 Wis.2d 208, 138 N.W.2d 273; Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101; State v. Stevens (1965), 26 Wis.2d 451, 464, 132 N.W.2d 5......
  • Tobar v. State
    • United States
    • Wisconsin Supreme Court
    • 1 November 1966
    ...several witnesses was a proper function of the trial court and on which this court finds no basis for upsetting. Drane v. State (1965), 29 Wis.2d 208, 211, 138 N.W.2d 273; Gauthier v. State (1965), 28 Wis.2d 412, 417, 137 N.W.2d The appellate court is not a place to re-argue questions of cr......
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