Langston v. State

• Decision Date: 27 November 1973
• Docket Number: No. S,S
• Citation: 212 N.W.2d 113,61 Wis.2d 288
• Parties: Billy Joe LANGSTON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 143.
• Court: Wisconsin Supreme Court

Page 113

212 N.W.2d 113

61 Wis.2d 288

Billy Joe LANGSTON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 143.

Supreme Court of Wisconsin.

Nov. 27, 1973.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Steven B. Wickland, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The information alleges that the defendant robbed William G. Shea of approximately $180 while armed with a dangerous weapon, to-wit: 'a bottle wrapped in a bag.' At the time of the alleged robbery, the defendant was a passenger in Shea's taxicab.

After the defendant had been taken to his requested destination, the driver advised that the fare was less than $1, and in the process of negotiating the change for a $20 bill, which the defendant said he had, defendant ordered the driver to give him all his money and turn off the ignition of the taxicab. The driver refused to turn off the ignition, so the defendant turned it off and then struck the driver on the head with a bottle, thereby breaking his glasses. The driver described the bottle as being similar to an eight-to-ten-ounce coke bottle with a cap on it. The driver testified that after this incident, defendant threatened three or four times to kill him, whereupon he decided to offer no further resistance. Defendant went through the driver's pockets, removed approximately $180 and a black coin purse, and then fled.

The police were promptly notified of the incident and contacted the driver of the taxicab. The driver described his assailant to the investigating officers, and from this description, one of the detectives considered the defendant to be a suspect. The officers went to the address where the defendant was believed to be living and were admitted by the landlady. They found the defendant lying on a bed counting a large sum of money. Also, there was a black coin purse on the bed, later identified as the one taken from the driver. The defendant was arrested and this prosecution ensued.

The issues raised on this appeal relate to the jury instructions given by the trial judge ¹ and the imposition of sentence.

INSTRUCTIONS.

In its instructions to the jury, the trial court substantially repeated the statutory language of the offense which included the following, ". . . Whoever violates sub (1) while armed with a dangerous weapon may be . . .' punished,' and then he stated, 'The testimony in this case shows that a bottle was used as a weapon.' The defendant argues that this statement in the instructions is prejudicial error.

Immediately following the utterance of the foregoing statement, the trial court proceeded to discuss the necessary elements of the crime charged, and correctly explained the requisites for a jury finding of robbery while armed. The trial court further instructed:

'Section 939.22, sub (10), of the Wisconsin Statutes defines dangerous weapon as any device or instrumentality which in the manner it is used or intended to be used is calculated or likely to produce death or great bodily harm. Great bodily harm, according to Section 939.22, sub 14, of the Wisconsin Statutes 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.

'If you find from the testimony that a bottle was, in fact, used as a weapon in the commission of this offense and the bottle so used constituted a device or an instrumentality which in the manner in which it was used was calculated or likely to produce death or great bodily harm as heretofore defined, then you may find that the bottle so used was a dangerous weapon. If you find that this was not the case, then you should consider that the bottle was not a dangerous weapon within the definition given.'

We find no prejudicial error in the jury instructions given by the trial court.

In Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 610, 111 N.W.2d 495, 500, it was recognized that:

'. . . (W)hen instructing the jury, the trial court should avoid stating facts and conclusions which are in dispute in an affirmative manner. Such practice could amount to an unwarranted invasion of the province of the jury. See Cohen v. Bridges (1949), 255 Wis. 535, 39 N.W.2d 373.'

The statement which the defendant challenges on this review did not constitute an unwarranted invasion of the province of the jury by the trial court. The information charged that the 'dangerous weapon' used in the instant offense was a bottle. Thus, the critical issue to be determined by the jury was whether the bottle, considering its nature and the manner in which it was used, constituted a dangerous weapon. The statement of the trial court, to the effect that a bottle was used as a weapon, specifically identified the issue to be determined by the jury. The instructions explicitly charged the jury with the responsibility of making a determination as to whether a bottle was, in fact, used as a dangerous weapon in the commission of this offense within the contemplation of the statute.

It was within the province of the jury to determine whether a bottle of this nature, used in the manner in which it was, striking the driver on the temple, could be calculated or likely to produce great bodily harm as defined in sec. 939.22(14), Stats., and thereby constitute a dangerous weapon within the meaning of sec. 939.22(10). The instructions placed this responsibility entirely upon the jury.

The statutory definition of a dangerous weapon as it relates to armed robbery does not require actual injury to the victim. It is concerned with whether the device or instrumentality is used or intended to be used in a manner calculated or likely to produce death or great bodily harm. The defendant's reliance on State v. Bronston (1959), 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468, wherein the defendant was charged with aggravated battery, is misplaced. Furthermore, in the instant case the jury could have also determined that the bottle was used to threaten the driver. The driver acquiesced in the taking of his money after he was hit on the head with the bottle and the defendant had three or four times threatened to kill him.

While we have exercised our discretion to review the alleged prejudicial error in the jury instructions on its merits, we observe that the defendant has effectively waived any right to such a review by failure to request a specific instruction or object to the instruction at trial. ² The record reflects that defendant's experienced trial counsel was cognizant of this issue because at the conclusion of the state's case and before the defendant proceeded with his defense, the trial court rejected defendant's argument that the bottle was not a dangerous weapon offered in support of his motion to dismiss.

At least as far back as 1860, when one Mr. Graves was convicted of stealing a horse and the State Supreme Court reviewed his conviction it has been recognized that:

'. . . It is the constant practice of this court not to review or consider questions involved in the instructions given to the jury at the circuit, where, from the court pursued, we can see that the...