Holesome v. State

• Decision Date: 01 October 1968
• Parties: Thomas Melvin HOLESOME, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 283

161 N.W.2d 283

40 Wis.2d 95

Thomas Melvin HOLESOME, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Oct. 1, 1968.

Frank X. Kinast, Beloit, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Robert J. Ruth, Rock County Dist. Atty., Janesville, for defendant in error.

BEILFUSS, Justice.

The issue presented is whether the crime of endangering the safety of another by conduct regardless of life, sec. 941.30, Stats., can be an included offense under an information charging first-degree murder, sec. 940.01, Stats., as a matter of law.

It must first be noted that the record contains written stipulations to the effect that the written transcript of the testimony not be made a part of the record and that the testimony not be abridged in an appendix. The sketchy statement of facts as it appears above is gleaned from the briefs of the parties.

Because none of the evidentiary facts are before us, we must assume that the evidence presented to the jury was amply sufficient to support the verdict adopted and returned. This is to say, the defendant did on May 30, 1967, endanger Bobby Gene Selmer's safety by conduct imminently dangerous to Bobby Gene Selmer and evincing a depraved mind, regardless of human life.

The penalty for first-degree murder is life imprisonment, and the penalty of endangering the safety of another regardless of life is a fine of not more than $1,000 or imprisonment of not more than five years or both. Obviously endangering the safety of another is a lesser crime than first-degree murder. The question confronting us then is whether the crime of endangering another under its statutory definition can be a lesser included crime under an information charging first-degree murder in the words of that statute.

The information filed charged: 'Thomas Melvin Holesome did feloniously cause the death of Bobby Gene Selmer with intent to kill the said Bobby Gene Selmer.'

In support of his position the defendant cites Matter of McLeod (1913), 23 Idaho 257, 128 P. 1106, 43 L.R.A.,N.S., 813. The question was whether assault with a deadly weapon was an included crime under an indictment charging murder. The Idaho court stated, at pp. 267, 268, 128 P. at p. 1110:

'There can be no contention that assault is a necessary element of murder. A murder may be committed without any assault whatever. If that be true, an assault with a deadly weapon would not necessarily be included in a charge of murder.'

The Idaho statute defining lesser offenses (sec. 7926 Rev.Codes) includes only those necessarily included in the crime charged and attempts to commit the crime charged.

There is no such necessity in sec. 939.66, Stats. This court in Laev v. State (1913), 152 Wis. 33, 39, 40, 139 N.W. 416, 418, did not impose this strict limitation:

'It is true that a crime can be committed under section 4423 (the higher offense) without committing one under 4438h (the lesser offense) also; but it is utterly impossible to commit a crime under section 4423 (the higher offense) in the form and manner in which it was committed in this case without also committing one under section 4438h (the lower offense). This being so, and the offenses having sprung from the same transaction, and being of the same nature, merely differing in degree, it can make no difference, in determining whether the lesser offense was included in the greater, that other classes of offenses falling under section 4423 (the higher offense) might be perpetrated without an offense being committed under section 4438h (the lower offense).'

We conclude that an information charging first-degree murder can be sufficient to support a verdict of endangering the safety of another under sec. 941.30, Stats. Based upon the facts as we presume them in this case, the charge of murder quite naturally reduces to a charge of endangering the safety of another. Because there was not sufficient showing that the defendant caused the death, his conduct was endangering the safety of the deceased and, if there was no showing of intent, it was imminently dangerous conduct evincing a depraved mind. We have heretofore stated, under given factual situations, second-degree murder is first-degree murder without the intent to kill. State v. Kanzelberger (1965), 28 Wis.2d 652, 662, 137 N.W.2d 419 and Brook v. State (1963), 21 Wis.2d 32, 43, 123 N.W.2d 535. Sec. 940.02 (second-degree murder) and sec. 941.30 (endangering the safety of another) are identical except for the description of the resultant harm. If second-degree murder is a lesser included crime to a charge of first-degree murder it follows that a factual situation showing all of the acts of second-degree murder except death is a lesser included crime in an information charging first-degree murder.

There may well be situations where the facts do not permit a verdict of endangering the safety of another to be submitted to the jury as a lesser included crime to a charge of first-degree murder, but in factual situations such as we assume here it can be.

In the...