State v. Bronston

Decision Date26 June 1959
PartiesSTATE of Wisconsin, Respondent, v. Donald Edward BRONSTON, Appellant.
CourtWisconsin Supreme Court

Marvin E. Klitsner, Lyman A. Precourt, Fairchild, Foley & Sammond, Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Ben J. Wiener, Deputy Dist. Attys., Milwaukee, for respondent.

CURRIE, Justice.

The controlling questions on this appeal are:

(1) Does the evidence support the conviction of the defendant for aggravated battery under sec. 940.22 Stats.?

(2) Was the confession with respect to the attempted robbery testimonially untrustworthy?

(3) Was there a denial of due process which invalidated such confession?

Aggravated Battery

Aggravated battery was introduced into the criminal law of this state as an offense by the new Criminal Code adopted by the 1955 legislature. The most nearly comparable offense under the prior criminal statutes of the state was assault with intent to do great bodily harm. See sec. 340.41, Stats.1953. However, such prior offense of assault with intent to do great bodily harm bore a maximum state prison sentence of three years, while the new crime of aggravated battery carries a maximum state prison sentence of five years. Sec. 940.22, Stats.1957. The offense of aggravated battery is described in such latter statute in this terminology: 'Whoever intentionally causes great bodily harm to another.' 'Great bodily harm' is defined for the purposes of the new Criminal Code by sec. 939.22(14), Stats., as follows "Great bodily harm' 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.'

It is plain to be seen that, unlike the former crime of assault with intent to do great bodily harm, the new offense of aggravated battery is not concerned with the potentialities of the offender's act but only with its end result. Therefore, it is immaterial whether a blow from the wrench wielded by the defendant might have caused Mrs. Zilke to suffer a brain concussion, a fractured skull, or fatal injury. The issue is simply, did she suffer great bodily harm within the meaning of the statute as a result of the blow?

Mrs. Zilke's injury resulting from the blow consisted of a two inch laceration of the scalp on the left rear portion of her head that required four sutures to close. She remained in the hospital but a few hours and was released. The place on the skull where struck is where the left jaw bones are connected to the skull. For some time she had headaches and suffered pain in the left jaw which was diagnosed as traumatic arthritis of the left mandibular joint. Mrs. Zilke testified that she thought the headaches were a nervous reaction. She received medical treatment for the jaw condition and after a while she did not have any more pain.

Penal statutes are to be interpreted strictly against the state and liberally in favor of the accused. Weirich v. State, 1909, 140 Wis. 98, 100, 121 N.W. 652, 22 L.R.A.N.S., 1221; Smith v. United States, 1959, 79 S.Ct. 991; State v. Di Paglia, 1955, 247 Iowa 79, 71 N.W.2d 601, 49 A.L.R.2d 1223; 50 Am.Jur., Statutes, 430, 431, sec. 407, and 82 C.J.S. Statutes § 389, p. 924 et seq. Because of this rule, in construing sec. 939.22(14), containing the definition of 'great bodily harm,' we deem that the further canon of statutory interpretation of ejusdem generis to be applicable. The nervous headaches and pain in the jaw which did not endure for a protracted period that Mrs. Zilke suffered are not in the same category as 'permanent or protracted loss or impairment of the function of any bodily member or organ.'

It is our considered judgment that Mrs. Zilke did not sustain 'great bodily harm' within the meaning of sec. 939.22(14), Stats., and, therefore, the evidence did not sustain the conviction of the defendant of the charged offense of aggravated battery. Decisions of courts of other jurisdictions which are in accord with this holding are Minnix v. State, Okl.Cr.1955, 282 P.2d 772, 777, and Gonzalez v. State, 1943, 146 Tex.Cr.R. 108, 172 S.W.2d 97.

Where, as in the instant case, the facts are undisputed as to the nature of the injury inflicted by the battery, it is a question of law and not of fact as to whether the injuries are sufficient to constitute the crime of 'aggravated battery' as defined by statute.

Counsel for the defendant contend that the evidence with respect to the battery would only sustain a conviction for ordinary battery under sec. 940.20, Stats., which statute provides for a maximum imprisonment sentence of six months. On the other hand, the state maintains that the evidence is sufficient to sustain a conviction of the offense of an attempt to commit aggravated battery, if the court should come to the conclusion that Mrs. Zilke did not sustain 'great bodily harm' within the meaning of sec. 939.22(14), Stats. We deem that the state is correct in the position taken on this point.

Sec. 939.66, Stats., provides in part: 'Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both.' Subd. (4) of such statute makes an attempt to commit the crime charged in violation of sec. 939.22 an 'included crime.' Sec. 939.32, Stats., provides that anyone who attempts to commit a felony may be fined or imprisoned, or both, not to exceed one-half the penalty for the completed crime, subject to a maximum sentence of 30 years if the completed crime carries a life sentence.

We are satisfied that the evidence would support a finding that the defendant, when he struck Mrs. Zilke, had an intent to inflict great bodily harm. He must be deemed to have intended the natural consequences of his act, and the blow struck might very easily have caused a fractured skull.

Because of the conclusion reached, the judgment of conviction of the offense of aggravated battery must be reversed and the defendant remanded to the trial court, with directions to enter a judgment of conviction of the offense of attempt to commit the crime of aggravated battery and for proper sentencing under such judgment.

Testimonial Trustworthiness of the Confession

Defendant at the time of the commission of the alleged offenses was twenty-six years of age, married and had one child, a daughter three years of age. He was employed as a sales trainee by Milwaukee Crane Company located at Cudahy, Wisconsin, at an annual salary of $10,000. Defendant is a college graduate, having been graduated from the University of Tennessee. He had no previous criminal record of any kind.

When the defendant was arrested the police found on his person forms used in betting on college basketball games. The defendant admitted to the police that he had placed bets on basketball games through a bookie and owed $70 in losses. One policeman testified that the defendant further admitted that his total losses extending over the weeks he had been placing such bets aggregated $600. The defendant upon the trial testified that his total losses aggregated but $200. In any event, at the time of arrest the defendant owed only $70 of such losses as the remainder already had been paid by him. In his confession, the defendant stated that he struck Mrs. Zilke with the wrench in order to rob the liquor store to obtain money to cover his betting losses so as to conceal such losses from his wife.

In the absence of the confession, and certain disputed statements given to the police, there is some doubt as to whether there was sufficient other evidence to support a conviction of attempted robbery. The cash register in the Zilke liquor store was at the far end of the counter opposite the outer door through which the defendant had entered, and there was no evidence that he went near the same.

On the other hand, there was strong circumstantial evidence that robbery was not the motive underlying the battery. The defendant at the time of his arrest had over $80 in money on his person and had another $90 in cash at home. His semi-monthly paycheck from the Crane Company in the sum of $343 had been signed by the executive vice-president of the company that morning, and could have been had by the defendant for the asking. In addition, he owned two automobiles which were unencumbered, stocks, bonds, and savings and checking accounts.

At the trial the defendant did not repudiate that part of the confession which related to the striking of Mrs. Zilke. However, he did repudiate the part of the same which attempted to state a reason or motive for such battery. This is made very clear by the following question put to him at the trial and his answer thereto:

'Q. Do you know now or do you have any view now as to whether or not the reason that you gave to the police on that occasion was the reason that you hit this woman?

'A. I don't know what the reason was that I hit her. I am sure that couldn't be it. I wish I did know.'

On the issue of the admissibility of the confession, the defense called Dr. Joseph A. Kindwall as a witness. Dr. Kindwall has been a practicing physician since 1927 and specializes in neuro-psychiatry. At one time he served as medical director of the Milwaukee Sanitarium which provides treatment for people afflicted with mental disorders. Dr. Kindwall testified that he first examined the defendant on February 15, 1958, which was only two days after the day the defendant had committed the act for which he was prosecuted and on which his confession was obtained. The following question was then put to Dr. Kindwall by defendant's counsel:

'Now, will you give us your medical evaluation of Donald Bronston as of the beginning of the period during which you saw him or were consulted with respect to him.'

The state objected to the...

To continue reading

Request your trial
32 cases
  • State v. Mendoza
    • United States
    • Wisconsin Supreme Court
    • 4 October 1977
    ...our court held the blow struck, as a matter of law, did not constitute an assault with intent to do great bodily harm. State v. Bronston, 7 Wis.2d 627, 633, 97 N.W.2d 504, 98 N.W.2d 468 (1959). In commenting on the Bronston Case, this court recently stated: "(T)he relatively minor injuries ......
  • Culombe v. Connecticut
    • United States
    • U.S. Supreme Court
    • 19 June 1961
    ...N.W.2d 537; State v. Babich, 1951, 258 Wis. 290, 45 N.W.2d 660; State v. Stortecky, 1956, 273 Wis. 362, 77 N.W.2d 721; State v. Bronston, 1959, 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468. Wyoming: Mortimore v. State, 1916, 24 Wyo. 452, 161 P. 766; State v. Lantzer, 1940, 55 Wyo. 230, 99 P.2......
  • Jackson v. Denno, 62
    • United States
    • U.S. Supreme Court
    • 22 June 1964
    ...matter; only if trial judge disbelieves evidence going to involuntariness should the confession be admitted). WISCONSIN: State v. Bronston, 7 Wis.2d 627, 97 N.W.2d 504 (issue of trustworthiness of a confession for the jury). Pollack v. State, 215 Wis. 200, 253 N.W. 560 (unless the confessio......
  • State v. Myers
    • United States
    • Wisconsin Supreme Court
    • 9 November 1990
    ...appellate court entering a conviction of a lesser included offense. 13 In contrast to McKissick, the defendant relies on State v. Bronston, 7 Wis.2d 627, 97 N.W.2d 504, modified 7 Wis.2d 642a, 98 N.W.2d 468 (1959), overruled on other grounds sub nom. State ex rel. Goodchild v. Burke, 27 Wis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT