Geitner v. State

• Decision Date: 05 June 1973
• Docket Number: No. S,S
• Citation: 207 N.W.2d 837,59 Wis.2d 128
• Parties: , 68 A.L.R.3d 823 Dean R. GEITNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 67.
• Court: Wisconsin Supreme Court

Page 837

207 N.W.2d 837

59 Wis.2d 128, 68 A.L.R.3d 823

Dean R. GEITNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 67.

Supreme Court of Wisconsin.

June 5, 1973.

Thomas G. Godfrey, Godfrey, Neshek & Worth, Elkhorn, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

No question involving the rape conviction or sentence is at issue on this appeal. While there are many issues raised, the only important question is whether false imprisonment is a lesser included crime of kidnapping. This court has many times discussed the problem of included crimes. Whether a crime is a lesser includable offense of another crime depends upon the definition of 'included crime' in sec. 939.66, Stats. ¹ Whether an instruction should be given on an included crime in a particular situation depends upon the evidence. The point raised on appeal does not concern the evidence but the question of whether the instruction could be given regardless of the evidence because it is contended false imprisonment by its very nature is not and cannot be an included crime of kidnapping. We hold this contention is correct.

The same criminal act may constitute different crimes with similar but not identical elements. State v. Roggensack (1962), 15 Wis.2d 625, 113 N.W.2d 389, 114 N.W.2d 459. In State v. Chacon (1971), 50 Wis.2d 73, 183 N.W.2d 84, we stated it is not the evidence but sec. 939.66, Stats., which determines what is an included crime. If one of the crimes is a lesser included offense of another crime, the defendant cannot be convicted of both. Such convictions are prohibited by sec. 939.66(1). If the same act constitutes two offenses, neither of which is the lesser included crime of the other, they constitute multiple crimes and the defendant may be convicted of either or both. In sec. 939.66, one of the definitions of an 'included crime' is a crime 'which does not require proof of any fact in addition to those which must be proved for the crime charged.' This statutory test has been followed in State v. Melvin (1970), 49 Wis.2d 246, 181 N.W.2d 490; State v. Smith (1972), 55 Wis.2d 304, 310, 198 N.W.2d 630, and Raymond v. State (1972), 55 Wis.2d 482, 488, 198 N.W.2d 351. In Melvin we held attempted first degree murder did not include any of the following as a lesser offense: (a) Possession of a pistol by a minor, which, unlike the greater crime, contains the element of minority (sec. 941.22, Stats.); (b) attempted homicide by reckless conduct, there being no such crime, since an attempt requires an intent, whereas homicide by reckless conduct does not; or (c) attempted battery, which is an included crime only of rape, robbery, mayhem, aggravated battery, or an attempt to commit any of them (sec. 939.66(5)). We also pointed out in Melvin that where a crime charged includes a lesser offense, to justify submission of an instruction on the lesser offense, there must be some reasonable ground in the evidence for a conviction on the lesser offense and an acquittal of the greater offense; hence a lesser offense charge is not proper when the evidence presents factual issues for the jury which are the same in both the lesser and the greater offense, such a charge being permissible only when the evidence requires the jury to determine a disputed fact in the charged offense which is not required for a conviction of the included offense. This allows a conviction on the included crime if the only failure of proof relates to the additional element in the greater crime. Thus, a determination of whether an instruction on a lesser included crime should be given to a jury is not solved by merely determining the crime charged includes the lesser offense, for juries are not to be given the discretion or option to pick and choose the least offense of which the accused should be found guilty; rather, they are bound by the evidence and should be limited to those included crimes which a reasonable view of the evidence would sustain while leaving a reasonable doubt as to the existence of the additional element of the greater crime. See also Martin v. State (1973), 57 Wis.2d 499, 204 N.W.2d 499; State v. Smith, supra.

We see no difficulty in the language of Holesome v. State (1968), 40 Wis.2d 95, 161 N.W.2d 283, which referred to the evidence in determining whether a lesser included offense existed. In Holesome, we quoted from Laev v. State (1913), 152 Wis. 33, 39 et seq., 139 N.W. 416, to the effect that a crime could be committed under one statute then in existence, which was designated in brackets as 'the higher offense,' without committing one under another section designated as 'the lesser offense.' This language has no application to our present sec. 939.66, Stats., which defines included crimes. In State v. Smith, supra, we thought we stated clearly that Holesome does not establish a different rule. Language used to construe a particular section of a statute should not be generalized and applied as a common-law rule. See Martin v. State, supra.

In the instant case the essential elements of kidnapping are defined in sec. 940.31(1)(a), Stats., ² as follows: (a) force or threat of imminent force; (b) carrying another person from one place to another place without that person's consent; and (c) an intent to cause that person to be (1) secretly confined or imprisoned, or (2) carried out of the state, or (3) held to...