Ross v. State
| Decision Date | 12 November 1973 |
| Docket Number | No. S,S |
| Citation | 61 Wis.2d 160,211 N.W.2d 827 |
| Parties | Willie J. ROSS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 78. |
| Court | Wisconsin Supreme Court |
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.
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.'
After the shooting, two weapons were on the bar, a .25 caliber automatic that belonged to Willie Ross and a .22 caliber revolver. 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 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 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 the jury's only alternatives were murder or complete privilege. While 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:
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 necessary to protect himself and he uses deadly force when he could reasonably believe that deadly force was necessary, there is a complete privilege. There may, however, be occasions where a defendant used deadly force when his belief, though his at the time, was unreasonable. Or there may be the circumstance where his belief that the necessity of self-defense was reasonable, but the deadly force used was unnecessary.
An instruction in respect to self-defense and an instruction in regard to manslaughter are not mutually exclusive. This question was definitively laid to rest by the United States Supreme Court at least as long ago as 1896 in the case of Stevenson v. United States (1896), 162 U.S. 313, 322, 16 S.Ct. 839, 842, 40 L.Ed. 980. The Supreme Court in that case stated:
The Illinois Court of Appeals, in People v. Zertuche (1972), 5 Ill.App.3d 303, 282 N.E.2d 201, concluded that it was mandatory to give the manslaughter instruction whenever a self-defense instruction was given. The court pointed out that, in passing on the question of self-defense, the jury was required to determine the reasonableness of the belief and the reasonableness of the force used. Therefore, the court cogently pointed out, an issue in respect to the reasonableness of the force and the belief of the necessity of self-defense was raised by the self-defense instruction itself. The issue of manslaughter was raised by implication in respect to the duty of the jury in the event the belief was unreasonable or the force unnecessary. The court said at page 306, 282 N.E.2d at page 203:
...
To continue reading
Request your trial
-
State v. Johnson
...jury giving the evidence full credence could reasonably return a verdict of guilt on the lesser included offense." Ross v. State, 61 Wis. 2d 160, 173, 211 N.W.2d 827 (1973). In making this determination, "all relevant and appreciable evidence is viewed in a light most favorable to the defen......
-
Cranmore v. State
...element included in the higher degree but not the lower, should the lesser crime be submitted to the jury . . . . Ross v. State, 61 Wis.2d 160, 169, 211 N.W.2d 827, 831 (1973). The evidence adduced must be viewed in a light most favorable to the defendants, but juries cannot be allowed comp......
-
State v. Shears
...N.W.2d 490, 493.' Laster v. State (1973), 60 Wis.2d 525, 536, 211 N.W.2d 13, 18. More recently, it was restated: 'In (Ross v. State (1973), 61 Wis.2d 160, 211 N.W.2d 827), we stated that the lesser included offense should be submitted only if there is a reasonable doubt as to some particula......
-
State v. Johnson
...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 in ......