Kimmons v. State, S
| Decision Date | 04 May 1971 |
| Docket Number | No. S,S |
| Citation | 51 Wis.2d 266,186 N.W.2d 308 |
| Parties | Charles H. KIMMONS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 25. |
| Court | Wisconsin Supreme Court |
Phillips, Richards & Mayew, Kenosha, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, Burton Scott, Kenosha Co. Dist. Atty., Kenosha, for defendant in error.
The plaintiff in error, hereinafter defendant, was convicted of two counts of armed robbery, in violation of sec. 943.32(1)(b) and (2), Stats. The two offenses occurred on November 27, 1968, one at approximately 4:45 p.m., the other at approximately 9:05 p.m. Trial was to a jury which returned verdicts of guilty to both offenses. The defendant was subsequently sentenced to a term not to exceed eight years on one count, and a term not to exceed three years on the second count, the sentences to be served consecutively. The defendant has appealed.
Two issues are raised on appeal: (1) Error in instructions, and (2) error for failure to submit verdicts for a lesser-included offense.
The resolution of this case does not require a detailed review of the facts. The victims of both robberies positively identified the defendant and testified that he was armed with a pistol. The female victim of the first robbery was not as knowledgeable of firearms as the male victim of the second robbery; however, her description of the weapon is sufficiently detailed to support the conviction.
ERROR IN INSTRUCTIONS.
The instructions given on the first count did not include the following language, 'while the said Charles H. Kimmons was then and there armed with a dangerous weapon, to-wit, a pistol.' However, in the general instructions to the jury, the trial court read the information to the jury. Each count charged robbery while 'armed with a dangerous weapon, to wit, a pistol.' The trial court read Webster's New World Dictionary's definition of a pistol to the jury, and also ss. 943.32(2) and 939.22(10), Stats. 1 Furthermore, the defendant did not submit requested instructions, or object to those given, or request additional instructions. Mitchell v. State (1970), 47 Wis.2d 695, 177 N.W.2d 833.
We consider the result of this appeal, as to this issue, is previously determined by our holding in the recent case of Claybrooks v. State (1971), 50 Wis.2d 79, 183 N.W.2d 139. Considering the evidence in this case and the instructions in their entirety, the omission of the specific language herein referred to was harmless error, and we consider it unnecessary to further discuss this issue.
VERDICTS FOR LESSER-INCLUDED OFFENSE.
The defendant argues that the trial court erred in failing to submit verdicts which would have permitted the jury to find the defendant guilty of the lesser-included crime of unarmed robbery. The defendant contends that in every case where armed robbery is charged, the lesser-included crime of unarmed robbery must be submitted. We consider this argument to be wholly without merit.
From the record, it is abundantly clear that the defendant was armed with a gun.
This court has held that it need not be shown that a gun was loaded or that it was a lethal weapon. Boyles v. State (1970), 46 Wis.2d 473, 175 N.W.2d 277; Claybrooks v. State, supra. The law in this state regarding the submission of verdicts covering lesser-included offenses was recently reviewed in State v. Melvin (1971), 49 Wis.2d 246, 252, 253, 181 N.W.2d 490, 493, 494:
'* * * In Zenou v. State (1958, 4...
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