Ross v. State, No. S

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHEFFERNAN; ROBERT W. HANSEN
Citation61 Wis.2d 160,211 N.W.2d 827
Decision Date12 November 1973
Docket NumberNo. S
PartiesWillie J. ROSS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 78.

Page 827

211 N.W.2d 827
61 Wis.2d 160
Willie J. ROSS, Plaintiff in Error,
v.
STATE of Wisconsin, Defendant in Error.
No. State 78.
Supreme Court of Wisconsin.
Nov. 12, 1973.

Patrick J. Devitt, Legal Aid Society of Milwaukee, Criminal Appellate Div., Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

At the trial, Willie J. Ross, the defendant herein, recounted a series of prior altercations and encounters between him and the deceased, J. C. Williams. On the evening in question, the defendant and his brother, David, were in the Blue Angel Lounge when the deceased and his companion, Roosevelt Taylor, entered. Taylor attempted to cadge a drink from Ross, and when Ross refused to buy Taylor a drink, a scuffle ensued. Willie Ross testified that, at this point, he walked to the other end of the bar to go to the cigarette machine. Willie Ross testified that, when he approached within about five feet of Williams, Williams spun on his stool and slapped a pistol in Ross' face, and Ross heard a click, whereupon Ross drew his gun from his pocket, cocked his automatic, and shot Williams. Under cross-examination Willie Ross estimated that five or six seconds elapsed between the first click he heard and the click he heard when he cocked his own weapon. Ross' brother, David, also testified in respect to this time interval, and he stated that the time between clicks was two or three seconds.

After Williams slumped to the floor, Willie Ross took Williams' gun. Willie Ross remained in the bar until the police arrived. He explained he did not run, 'Because I didn't think I did anything wrong, I was just protecting myself.'

[61 Wis.2d 164] After the shooting, two weapons were on the bar, a .25 caliber automatic that belonged to Willie Ross and a .22 caliber revolver.

Page 829

The .22 caliber revolver was one of two that had been purchased by Roosevelt Taylor on that very day. There was evidence to show that earlier in the day Taylor had showed J. C. Williams a handgun.

Both Willie Ross and his brother, David, testified that Williams had a gun in his left hand as Willie headed for the cigarette machine. The owner of the Blue Angel Lounge testified, however, that he saw no gun in Williams' left hand at the time he was shot. He could not see Williams' right hand. Another witness to the affray saw Williams reach for his pocket, but he was unable to say whether he withdrew anything from his pocket or whether he had anything in his hand.

After the shooting of Williams, the .22 caliber revolver was examined at the Wisconsin Crime Laboratory. A bullet was in the chamber, and an impression on the cartridge indicated that it had been struck by the firing pin. A test showed that the gun allegedly in the hands of Williams was a defective weapon. Test firing at the laboratory resulted in two misfires out of four. There was evidence to show that if Williams had attempted to shoot Ross, the weapon probably misfired.

The right to a self-defense instruction was not disputed, and that instruction was given. Defense counsel also asked for an instruction on manslaughter under sec. 940.05(2), Stats.--causing the death of another unnecessarily in the exercise of self-defense. The state contends the trial judge properly refused to give the manslaughter instruction because, if the evidence was construed by the jury to show that Williams pointed a gun at Ross and that gun misfired, Ross would be entitled under the doctrine of self-defense to protect himself and to shoot Williams. If Williams, however, did not have a gun, Ross would have no right to a manslaughter instruction. This latter argument is undoubtedly correct, but there [61 Wis.2d 165] was evidence, though disputed, that Williams did have a gun in his hand pointed at Willie Ross. The state points out, however, that if five or six seconds elapsed between the misfire of Williams' gun and the firing of the shot by Ross, 'the defendant would have had sufficient time to take other evasive or less drastic means of protecting himself.' As we view the record, it is precisely that latter eventuality that required the submission of the manslaughter instruction.

The remarks of the trial judge given in explanation of his ruling at the hearing on the post-trial motions apparently are the genesis of the state's position. The trial judge stated that the statute itself, sec. 940.05(2), Stats., was probably defective in that, if a defendant has the right to kill in self-defense, there is a complete defense and there is no room for a manslaughter instruction. The trial judge said:

'If the defendant is entitled to self-defense anything he does along such fine line of privilege, he is completely privileged and it exonerates him, whereas that one does not (manslaughter)--it mitigates; and if there is a killing that is not so privileged then, of course, the jury should be instructed definitely that unless his actions are consistent with the law covering self-defense and the Court's instructions therein, then it shouldn't be 'watered down' by permitting mitigating circumstances of this kind to interfere, if there is not a bona fide self-defense privilege.

'I am unable to understand the logic or the fairness of such mitigating type of verdict. It's either self-defense and he's exonerated, or it's not self-defense and it's not a privilege.

'I rejected it then and I reject the argument now.'

Accordingly, it appears that the trial judge took the position that, if the evidence in one view was probative of murder and also from another view indicated that the defendant had the right of self-defense,

Page 830

the jury's only alternatives were murder or complete privilege. While [61 Wis.2d 166] there is commendable logic in that position, the accepted rule of modern law as recognized by our legislature, and by courts generally, is to the contrary. The additional alternative of manslaughter has been recognized for the last five hundred years in Anglo-Saxon jurisprudence. Moreland, The Law of Homicide, page 91, states:

'Self-defense, itself, was an old doctrine stemming from as far back as the thirteenth century. But under the doctrine of self-defense the accused was completely excused or else it was murder. It was not until manslaughter was introduced into the law with the passage of the series of statutes in the latter part of the fifteenth and the first part of the sixteenth centuries that any change in the alternative nature of the self-defense rule was effected.'

Out of these early statutes arose the privilege of the imperfect right of self-defense. The doctrine of imperfect self-defense is set forth in sec. 940.05(2), Stats., and is denominated as a type of manslaughter. It is explained for the purposes of instructing a jury on a manslaughter charge in Wis J I--Criminal, Part II, 1140, as instruction which was approved in Mitchell v. State (1970), 47 Wis.2d 695, 177 N.W.2d 833. Sec. 940.05(2) defines manslaughter as the killing of another human being 'unnecessarily, in the exercise of his privilege of self-defense. . . .' The elements of the privilege of self-defense are set forth in Wis J I--Criminal, Part I, 800. The jury was properly instructed in accordance with these elements. Basically, there is a right to use force against another to prevent what the actor reasonably believes to be an unlawful interference with his person. He may, however, intentionally use only such force as he reasonably believes is necessary to prevent the interference. It is thus apparent that the privilege of self-defense may be a conditional one. If a defendant believes that intentional use of deadly force is...

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58 practice notes
  • State v. Johnson, Appeal No. 2018AP2318-CR
    • United States
    • Court of Appeals of Wisconsin
    • 8 Julio 2020
    ...the evidence in a light most favorable to the defendant. State v. Davis , 144 Wis. 2d 852, 855, 425 N.W.2d 411 (1988) ; Ross v. State , 61 Wis. 2d 160, 172, 211 N.W.2d 827 (1973) (indicating that whether a reasonable construction of the evidence will support the defendant's theory is viewed......
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • 13 Junio 2017
    ...accused.' " Head , 255 Wis. 2d 194, ¶113 (quoting State v. Mendoza , 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977) (quoting Ross v. State , 61 Wis. 2d 160, 172, 211 N.W.2d 827 (1973) )). ¶14 Whether there are sufficient facts to warrant the circuit court's instructing 895 N.W.2d 802the jury on......
  • Cole v. Young, No. 86-1308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Junio 1987
    ...result in a wrongful conviction on another charge. See, e.g., State v. Williford, 103 Wis.2d 98, 307 N.W.2d 277 (1981); Ross v. State, 61 Wis.2d 160, 211 N.W.2d 827 (1973). In Kirby, it was essential that the submission of the injury charge be found proper, for if it was not the endangering......
  • State v. Crisantos
    • United States
    • United States State Supreme Court (New Jersey)
    • 6 Mayo 1986
    ...offense,' no instruction need be given on the lesser offense.") (quoting MPC § 1.07(5) (Proposed Official Draft, 1962)); Ross v. State, 61 Wis.2d 160, 171, 211 N.W.2d 827, 833 (1973) ("The question basically is whether a jury giving the evidence full credence could reasonably return a verdi......
  • Request a trial to view additional results
58 cases
  • State v. Johnson, Appeal No. 2018AP2318-CR
    • United States
    • Court of Appeals of Wisconsin
    • 8 Julio 2020
    ...the evidence in a light most favorable to the defendant. State v. Davis , 144 Wis. 2d 852, 855, 425 N.W.2d 411 (1988) ; Ross v. State , 61 Wis. 2d 160, 172, 211 N.W.2d 827 (1973) (indicating that whether a reasonable construction of the evidence will support the defendant's theory is viewed......
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • 13 Junio 2017
    ...accused.' " Head , 255 Wis. 2d 194, ¶113 (quoting State v. Mendoza , 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977) (quoting Ross v. State , 61 Wis. 2d 160, 172, 211 N.W.2d 827 (1973) )). ¶14 Whether there are sufficient facts to warrant the circuit court's instructing 895 N.W.2d 802the jury on......
  • Cole v. Young, No. 86-1308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Junio 1987
    ...result in a wrongful conviction on another charge. See, e.g., State v. Williford, 103 Wis.2d 98, 307 N.W.2d 277 (1981); Ross v. State, 61 Wis.2d 160, 211 N.W.2d 827 (1973). In Kirby, it was essential that the submission of the injury charge be found proper, for if it was not the endangering......
  • State v. Crisantos
    • United States
    • United States State Supreme Court (New Jersey)
    • 6 Mayo 1986
    ...offense,' no instruction need be given on the lesser offense.") (quoting MPC § 1.07(5) (Proposed Official Draft, 1962)); Ross v. State, 61 Wis.2d 160, 171, 211 N.W.2d 827, 833 (1973) ("The question basically is whether a jury giving the evidence full credence could reasonably return a verdi......
  • Request a trial to view additional results

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