Martin v. State, S

• Decision Date: 27 February 1973
• Docket Number: No. S,S
• Citation: 204 N.W.2d 499,57 Wis.2d 499
• Parties: Gerald Lee MARTIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 110.
• Court: Wisconsin Supreme Court

Page 499

204 N.W.2d 499

57 Wis.2d 499

Gerald Lee MARTIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 110.

Supreme Court of Wisconsin.

Feb. 27, 1973.

Samson, Friebert, Sutton & Finerty, John D. Finerty, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert J. Vergeront, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

August 17, 1970, at approximately 5:30 a.m., one Harvey Larson was found dead at the rear of a passageway between dwellings at 1620A and 1624 West State street in the city of Milwaukee.

On the evening of August 16, 1970, the defendant, one Lois Wilson, the deceased, and several others ultimately arrived at the roof porch at 1620A West State street. They had been together early in the evening drinking intoxicants and continued doing so after arriving at the residence. Sometime after midnight an altercation occurred on the roof porch between the defendant and Larson. Defendant accused Larson of imposing himself on his 'woman.' Defendant then cradled his left arm around Larson's neck and hit him in the face or head twice with his right fist. Larson fell to the floor. While on the floor, Lois Wilson kicked him in the middle-rib-cage area, and the defendant jumped on his head. Defendant and Lois Wilson then dragged Larson's body down the steps and back into the passageway between the two buildings. They left the deceased at the entranceway to the alley and returned to a tavern which they had frequented earlier in the evening.

At the conclusion of the trial, the trial court found that the evidence presented by the State was not sufficient to show the cause of death beyond a reasonable doubt. Therefore, the trial court determined the State had not established a case of first-degree murder. The trial court, however, ultimately found the evidence sufficient to support a conviction of the lesser-included offense of injury by conduct regardless of life, contrary to sec. 940.23, Stats.

ISSUE.

The issue presented on this appeal is whether, as a matter of law, the crime of injury by conduct regardless of life, contrary to sec. 940.23, Stats., can be a lesser-included offense under an information charging first-degree murder contrary to sec. 940.01. Under the facts of this case, we are of the opinion that it is a lesser-included offense.

Section 940.01, Stats., provides:

'First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another shall be sentenced to life imprisonment.

'(2) In this chapter 'intent to kill' means the mental purpose to take the life of another human being.'

Section 940.23, Stats., provides:

'Injury by conduct regardless of life. Whoever causes great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not more than 10 years.'

The parties to this appeal have raised no dispute as to the sufficiency of the evidence to sustain defendant's conviction of injury by conduct regardless of life and the issue is not now before this court. However, it would appear that the evidence adduced, believed and rationally considered was sufficient to support the judgment entered. On August 16, 1970, the defendant caused great bodily harm ¹ to Larson by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.

Whether injury by conduct regardless of life is included within first-degree murder requires an analysis of the essential elements of each offense. If first-degree murder contains all the elements of injury by conduct regardless of life, the latter is an included offense and conviction of it is proper though it is not specifically charged in the information. ²

Section 939.66, Stats., provides:

'Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

'(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; or

'(2) A crime which is a less serious type of criminal homicide than the one charged; or

'(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent; . . .'

This court, in Holesome v. State (1968), 40 Wis.2d 95, 161 N.W.2d 283, determined that the crime of endangering the safety of another by conduct regardless of life, sec 941.30, Stats., was under the facts given, a lesser-included offense of first-degree murder. On page 101, 161 N.W.2d on page 286, this court stated:

'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.'

As stated in Holesome v. State, supra, sec. 940.02, Stats., (second-degree murder) and sec. 941.30 (endangering the safety of another), are identical except for the description of the resultant harm.

Section 940.02, Stats., provides:

'Second-degree murder. Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years.'

Section 941.30, Stats., provides:

'Endangering safety by conduct regardless of life. Whoever endangers another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be fined not more than $1,000 or imprisoned not more than 5 years or both.'

Section 940.23, Stats., under which defendant was convicted, is identical to both sections 940.02 and 941.30, again distinguished only by the resultant harm. Section 940.02 prescribes death; sec. 940.23 prescribes great bodily harm; and sec. 941.30 prescribes endangered safety. The crimes differ only in that proof of less serious consequences suffices for the conviction of the less serious offense.

Under the facts of this case, the charge of murder reduces to a charge of injury by conduct regardless of life. The evidence adduced at trial shows that the defendant struck the deceased two times with his fist on his head or face, knocked him to the porch floor and jumped on his head. These facts distinguish the instant case from Holesome, supra. In Holesome the evidence established that two people were firing shots at the victim and that his death was caused by a bullet wound. There was no evidence that the fatal bullet was fired by the defendant. If the state had been able to establish that the...