Irby v. State, S

Decision Date05 January 1971
Docket NumberNo. S,S
Citation49 Wis.2d 612,182 N.W.2d 251
PartiesLeon IRBY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 56.
CourtWisconsin Supreme Court

The plaintiff in error, Leon Irby (hereinafter defendant), was convicted of aggravated battery, contrary to sec. 940.22, Stats. Trial was had to a jury and the defendant was sentenced to two years and five months in the Wisconsin state prison.

Curtis Kirkhuff, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Allan P. Hubbard, Asst. Attys. Gen., Madison, for defendant in error.


The defendant and his brother, Sampson, were both charged with the same offense, arising out of the same incident, and were tried jointly.

Charles Harris, the victim, was a bartender and co-owner of a tavern in Madison, Wisconsin. August 4, 1968, Sampson had caused some trouble in the tavern where Harris was tending bar. Harris called the police and the police escorted Sampson out of the tavern. Before he left the tavern, Sampson threatened to get even with Harris.

The next evening Harris was again tending bar and Sampson and the defendant entered the tavern. Harris testified when he saw them enter, Sampson had a knife in his hand, which was at his side; and the defendant had a knife in his hand, which was held over his head. Words were exchanged and when Harris attempted to call the police, Sampson leaned across the bar and stabbed him in the right shoulder. He picked up a pool cue, started swinging it, and the Irby brothers backed out of the door and he locked it.

There were two patrons in the tavern who left in haste when the trouble started. One of them was going to a filling station a block away to call the police. Two nephews of Harris were in an automobile nearby and were notified of the incident by this patron. Harris testified he saw his two nephews approaching the tavern and the two Irbys going toward them threatening them. He went outside, warned his nephews and tried unsuccessfully to get Irbys' attention away from his nephews and back to himself. He had brought a bar stool into the street to use in defending himself. When he swung it at the defendant it slipped from his blood-covered hand. By the time the police arrived, the defendant had stabbed one of the nephews in the back and inflicted a wound to Harris in the region of the lower anterior-lateral chest, with what Harris described as a strong blow to the stomach, cut his face, and caused four lacerations to his right arm. Harris was taken to the hospital in an apparent unconscious condition by the police, where he remained for a week, spending the first two-and-one-half days in intensive care because of a collapsed lung and because the degree of bleeding indicated the severance of an intercostal artery or vein in the lower chest area. He lost approximately a pint of blood due to internal bleeding and approximately another pint due to external bleeding.

Sampson testified he neither had a knife, nor stabbed anyone. The defendant testified he stabbed Harris outside the tavern in self-defense.

Four issues are raised on appeal.

(1) Was there sufficient evidence to support a finding that the wounds inflicted by the defendant caused great bodily harm?

(2) Was the defendant denied due process by the trial court's refusal to order the state to disclose the names of witnesses prior to trial?

(3) Did the trial court abuse its discretion in denying the defendant's motion for a separate trial?

(4) Did the trial court err in refusing to limit the self-defense instruction to the defendant, Leon Irby, alone?



The defendant contends that there was insufficient evidence to support a finding that the would inflicted by him caused great bodily harm.

To support a conviction of aggravated battery, it is necessary that the defendant cause great bodily harm to another.

'940.22 Aggravated battery. Whoever intentionally causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another may be fined not more than $2,500 or imprisoned not more than 5 years or both.' Wisconsin statutes.

The term 'great bodily harm' is defined by sec. 939.22(14), Stats.:

'(14) 'Great bodily harm' means 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.'

The question then becomes, whether, under the facts of this case, the injuries sustained by Harris constitute great bodily injury as defined by sec. 939.22(14), Stats. The evidence in this case presents a question of fact for the jury. The trial court properly instructed the jury on the elements of the crime. The evidence adduced, believed and nationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt.

In State v. Bronston (1959), 7 Wis.2d 627, 633, 97 N.W.2d 504, 508, 98 N.W.2d 468, this court stated that where the facts are not in dispute, it is a question of law whether the injury inflicted constituted great bodily injury.

'Where, as in the instant case, the facts are undisputed as to the nature of the injury inflicted by the battery, it is a question of law and not of fact as to whether the injuries are sufficient to constitute the crime of 'aggravated battery' as defined by statute.'

In State v. Bronston, supra, this court held that evidence concerning the nature of the injury was insufficient to show great bodily harm and, therefore, the evidence would not support a conviction of the crime of aggravated battery. In that case the injury was inflicted by the defendant striking the victim on the head with a wrench. The injury was described as follows:

'Mrs. Zilke's injury resulting from the blow consisted of a two-inch laceration of the scalp on the left rear portion of her head that required four sutures to close. She remained in the hospital but a few hours and was released. The place on the skull where struck is where the left jaw bones are connected to the skull. For some time she had headaches and suffered pain in the left jaw which was diagnosed as traumatic arthritis of the left mandibular joint. Mrs. Zilke testified that she thought the headaches were a nervous reaction. She received medical treatment for the jaw condition and after a while she did not have any more pain.' State v. Bronston, supra, 632, 633, 97 N.W.2d at 508.

The facts of the instant case readily distinguish it from Bronston. In Bronston there appears to be no factual dispute regarding the relatively minor injury inflicted upon the victim. In this case the record is replete with conflicting testimony concerning the incidents both inside and outside the tavern. It would serve no useful purpose to here review them in detail.

The attending physician testified that the shoulder wound, apparently inflicted by Sampson, although he denied having a knife or stabbing the victim, probably caused the collapsed lung, and at the time there existed a high probability of death. The chest would caused considerable bleeding because of the severance of an intercostal artery or vein in the lower chest area. There is nothing in the testimony of the doctor to indicate that he in any way treated the chest wound as minor.

Defendant also contends that the testimony of the doctor and the form of the questions put to him did not meet the proper standard for opinion. An examination of the record reflects that many of the questions put to the doctor were in the form of inquiries as a reasonable medical certainty. In State v. Muhammad (1968), 41 Wis.2d 12, 24, 162 N.W.2d 567, this court stated it is preferable to ask for a medical opinion couched in terms of a reasonable degree of medical certainty. However, many of the questions asked in this case did not call for an opinion but for a statement of fact based upon the doctor's personal knowledge, examination and treatment of Harris. He testified as a treating physician.

As we understand the argument advanced by the defendant, he would have this court determine that a conviction under sec. 940.22, Stats., must be supported by testimony of a doctor with an opinion to a reasonable medical certainty as to the type of injury inflicted in order for the state to prove the injury fell within those described in sec. 939.22(14). We make no such determination in this case. 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. The jury made a proper determination based upon the evidence as

we have reviewed the record. FAILURE OF THE TRIAL COURT TO


The complaint was signed by Detective McCarthy of the Madison police department. After alleging the existence of facts constituting battery, the complaint states:

'* * * That the complainant is a detective with the Madison Police Department and is in charge of the investigation of this case. That during said investigation, he questioned the said Charles Harris and witnesses to the occurrence. The information contained herein was received from Mr. Harris and the said witnesses. * * *'

At the preliminary hearing, counsel for the defendant called Detective McCarthy for questioning and asked him the names of the persons to whom he talked which formed the basis of the facts for the complaint. An objection to the question was sustained. Counsel for the defendant indicated that the purpose of the questioning was to obtain disclosure of the names of witnesses that may be called at the trial.

Subsequent to the preliminary hearing, counsel for the defendant moved the trial court for an order requiring the state to...

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8 cases
  • State v. Gould
    • United States
    • Wisconsin Supreme Court
    • January 3, 1973 of injury actually suffered and not with the potentialities of the act which caused the bodily harm. Cases like Irby v. State (1971), 49 Wis.2d 612, 182 N.W.2d 251; State ex rel. Hanna v. Blessinger (1971), 52 Wis.2d 448, 190 N.W.2d 199; and Creighbaum v. State (1967), 35 Wis.2d 17, ......
  • Haldane v. State, 76-197-CR
    • United States
    • Wisconsin Supreme Court
    • October 3, 1978
    .... . . a single defense version of the events in issue." State v. Nutley, supra 24 Wis.2d at 543, 129 N.W.2d at 161. In Irby v. State, 49 Wis.2d 612, 182 N.W.2d 251 (1971), two brothers, Leon and Sampson Irby were jointly tried for stabbing a bartender, Charles Harris. Sampson testified that......
  • Cheatham v. State, 76-453-CR
    • United States
    • Wisconsin Supreme Court
    • October 3, 1978
    ...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 whi......
  • Willis v. State, S
    • United States
    • Wisconsin Supreme Court
    • June 29, 1973
    ...function of any bodily member or organ or other serious bodily injury.' The type of injury required is illustrated in Irby v. State (1970), 49 Wis.2d 612, 182 N.W.2d 251, wherein the victim was stabbed in the stomach, cut in the face, inflicted with four lacerations on his right arm, taken ......
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