Mitchell v. State
| Citation | 47 Wis.2d 695,177 N.W.2d 833 |
| Decision Date | 26 June 1970 |
| Docket Number | No. S,S |
| Parties | Hugh M. MITCHELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 165. |
| Court | United States State Supreme Court of Wisconsin |
The plaintiff in error, Hugh M. Mitchell (hereinafter defendant), was convicted March 6, 1969, on a charge of manslaughter (sec. 940.05, Stats.) for the shooting death August 23, 1968, of Donald G. Skenandore. The information filed against Mitchell charged him with second-degree murder (sec. 940.02). Forms of verdict finding the defendant guilty of second-degree murder, manslaughter, and not guilty were submitted to the jury. Defendant's sole defense to the prosecution was a claim of self-defense. Following the jury's verdict of guilty of manslaughter and entry of judgment the defendant was sentenced to 10 years' imprisonment with the Wisconsin State Prison at Waupun the designated reception center.
The shooting incident occurred at the 'Juke House Tavern,' 2041 North 22nd street, Milwaukee.
On the evening of August 23, 1968, the defendant was attending a birthday party in his honor at the Juke House Tavern and had been there since about 8:30 p.m. Several tables had been assembled for the party and the defendant was seated at one of them very near the front door. At approximately 11:00 p.m., the deceased, Donald Skenandore, after parking his car immediately in front of the tavern and leaving his two daughters in the car, entered the tavern and, upon entering, cussed at the defendant, telling him, The defendant responded by moving his chair. The deceased then approached the bar and, according, to the defendant, asked the bartender,
After Skenandore ordered a beer for himself and a companion and then said to the bartender, "If you don't take care of this, then I will take care of it my damn self," he then turned to the defendant, repeating the admonition uttered upon entering the tavern and added, The defendant and his companions testified the deceased began approaching and as he did so placed his right hand in his pocket. The defendant admitted that as Skenandore approach his table the deceased uttered no further threats, did not display a visible weapon, and did not strike or attempt to strike the defendant. The defendant, Mitchell, testified that he was a bartender at the Mug and Jug Tavern and that he had seen Skenandore there five or six times but that he had experienced no problems or trouble with him before the events of August 23, 1968, at the Juke House Tavern.
As the deceased approached defendant's table the defendant rose from his chair and began backing out the door. At the same time the defendant drew a revolver and pointed it at the deceased as he approached. The defendant stated, As the deceased continued to approach the defendant fired the first shot aiming at and striking Skenandore's left shoulder. The testimony indicates the defendant backed down the five steps to the sidewalk and the deceased was either in the doorway or on the top step when the first shot was fired.
The deceased's daughter, Florence, testified that after the first shot she saw the two men coming out of the tavern and heard the defendant say, "Don't come any closer because I don't want to kill you," to which her father replied, "Its good music." All the eyewitnesses agreed the deceased continued to come down the stairs and the defendant then fired a second shot. A span of from ten to forty seconds passed as the deceased approached within about four feet of the defendant on the sidewalk before the third and fourth shots were fired.
Both of decedent's daughters testified that as the deceased came down the steps both his hands were exposed, with only the thumb of his right hand in his pocket. They further stated the fourth shot was fired as their father was falling toward the sidewalk. After the shooting the defendant swung his coat over his shoulder and walked away from the scene. He was arrested at his home at 7:30 a.m., the next day.
The court's instructions to the jury in this case included the Wisconsin Jury Instructions--Criminal: second-degree murder (Wis J. I--Criminal, Part II, 1110); self-defense by deadly force (Wis J I--Criminal, Part I, 805); and retreat (Wis J I--Criminal, Part I, 810). After considerable deliberation the jury returned for reinstruction on manslaughter and self-defense. Following a short deliberation the jury then returned a verdict of guilty of manslaughter.
No objections to the form of the instructions were made at the trial, but a motion was filed with the court requesting judgment notwithstanding the verdict and for a new trial on the ground the jury was confused on the legal standards respecting the use of excessive force.
There is no question but that the defendant was represented by able court-appointed counsel at the trial and the same attorney was appointed by this court for defendant's appeal.
The defendant seeks, by this writ of error, to review both the judgment and the court's order denying his motion for a new trial.
Gerald P. Boyle, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Joseph E. Tesch, Asst. Dist. Atty., Milwaukee, for defendant in error.
Two issues are presented:
1. Were the court's instructions to the jury on manslaughter and self-defense confusing and prejudicial?
2. Is the evidence of self-defense so conclusive the court should have ordered judgment for the defendant notwithstanding the jury verdict?
The information charged the defendant with second-degree murder in the slaying of Donald Skenandore. Verdicts of guilty of second-degree murder, guilty of manslaughter and not guilty were submitted to the jury. It returned the verdict of guilty of manslaughter. As to both second-degree murder and manslaughter, it was the defendant's claim that he was not guilty because he was acting in self-defense. Instructions on second-degree murder, manslaughter and self-defense as they appear in Wisconsin Jury Instructions, Criminal, were given to the jury.
This court has said in several recent cases that it would consider the failure to timely object to jury instructions a waiver of any alleged defects in those instructions. Curl v. State (1968), 40 Wis.2d 474, 480, 162 N.W.2d 77; State v. Halverson (1966), 32 Wis.2d 503, 145 N.W.2d 739; State v. Kanzelberger (1965) 28 Wis.2d 652, 137 N.W.2d 419, certiorari denied 385 U.S. 867, 87 S.Ct. 127, 17 L.Ed.2d 93; and Johns v. State (1961), 14 Wis.2d 119, 109 N.W.2d 490. The duty incumbent upon trial lawyers seeking to challenge the uniform jury instructions was set forth in State v. Kanzelberger, supra, 28 Wis.2d p. 659, 137 N.W.2d p. 422:
Additionally, it can be said that neither defendant personally, nor through his counsel, should be permitted to listen to jury instructions being presented to the jury which he or his counsel believe to be inaccurate or incorrect and await the return of the verdict and, if unfavorable, then complain as a matter of...
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