State v. Carli
| Decision Date | 03 December 1957 |
| Parties | STATE of Wisconsin, Respondent, v. John S. CARLI, Appellant. |
| Court | Wisconsin Supreme Court |
Joseph E. Tierney, Milwaukee, for appellant.
Stewart G. Honeck, Atty. Gen., William A. Platz, Asst. Atty. Gen., George D. Sullivan, Dist. Atty. Iron County, Hurley, for respondent.
1. Sufficiency of Evidence. Defendant argues that the evidence was insufficient to establish beyond reasonable doubt the offense of assault with intent to commit great bodily harm. He relies on the fact that the court did not find him guilty of mayhem or assault with intent to commit mayhem. Therefore, he says, the court entertained a reasonable doubt whether defendant bit Garber's ear. To the contrary, however, the circuit court made it crystal clear in its memorandum opinion that it determined 'beyond a reasonable doubt that John Carli did chew off a portion of the ear of Garber.' Apparently the court was not satisfied that the extent of the injury intended or inflicted was sufficient to qualify as mayhem.
It is clear from the statement of facts previously set forth that there were a number of conflicts in the testimony which were material only as they might affect credibility. The ear biting could not have been justified as self defense in these circumstances even if the court believed that Garber struck the first blow. There was a conflict on the central issue of whether defendant bit the ear. The court believed Garber's testimony that defendant did. We are satisfied that the extent of the injury is sufficient to constitute great bodily harm and that there was ample evidence that the injury was intentionally inflicted.
2. Double Jeopardy. The information contained two counts. The first charged mayhem by biting off a portion of the ear with malicious intent to maim and disfigure; the second charged an attempt to maim with intent to tear off an ear with his teeth. Defendant maintains that he was placed in second jeopardy for the same offense when the trial court refused to find him guilty of mayhem or attempted mayhem and found him guilty of assault with intent to do great bodily harm.
The real question, as we see it, is whether assault with intent to do great bodily harm is a lesser offense than mayhem and included within it. If it is, then the defendant was at all times during his trial facing the lesser charge as well as the more inclusive ones set forth in the information, and he could property be found guilty of the lesser offense where the court deemed that the greater had not been proved.
Sec. 340.35, Stats.1953, provides in part as follows:
Sec. 340.36, Stats.1953, provides in part as follows:
Sec. 340.41, Stats.1953, provides:
Clearly the information expressly charged defendant with crimes for which the maximum punishment was greater than for the offense of which he was convicted. In order to prove mayhem, as charged in the first count, the state must prove that defendant acted with malicious intent to maim or disfigure and that he cut or tore off Garber's ear. We are satisfied that the cutting or tearing off of an ear, or even the portion disclosed by the evidence here, constitutes great bodily harm. Thus if the state had successfully proved the offense charged in the first count, it would have proved every element of the offense of assault with intent to do great bodily harm. That is the test of whether an offense not expressly charged is included within the charge specifically set forth.
Defendant relies principally upon Kilkelly v. State, 1878, 43 Wis. 604. It was there held that an information charging assault with intent to murder did not include assault with intent to maim because the intent to maim is different in character from intent to murder. The Kilkelly decision was expressly modified, however, in Birker v. State, 1903, 118 Wis. 108, 112, 94 N.W. 643, 644. The court said:
3. Speedy Trial. Defendant claims he was denied his constitutional right to a speedy trial. He was arrested December 18, 1954, and a preliminary hearing was had before the county court January 4, 1955. It resulted in an order binding defendant over to the circuit court for trial. Apparently defendant attacked the procedure and the circuit court dismissed the proceeding in May, although the record in this court does not contain the motion for, nor order of, dismissal.
Defendant was re-arrested May 16, 1955, and a preliminary hearing was had before the county court June 1, and time allowed thereafter for briefs. On June 21, the county court ordered defendant to appear for trial before the circuit court.
On November 23, 1955, the district attorney filed the information. On November 25, there was a hearing before the circuit court on a writ of habeas corpus, apparently grounded upon a claim that a speedy...
To continue reading
Request your trial
-
Cole v. Young
...appellate opinion reported during the last century to consider the elements of the crime of mayhem. (The first was State v. Carli, 2 Wis.2d 429, 86 N.W.2d 434 (1957), cert. denied, 357 U.S. 907, 78 S.Ct. 1151, 2 L.Ed.2d 1157 (1958)). The reason for the paucity of case law, as the state expl......
-
State v. Quintana
...as interpreted in La Barge...."35 Kirby, 86 Wis.2d at 301, 272 N.W.2d 113. The court of appeals reasoned that in the 1957 decision of State v. Carli, the "Wisconsin Supreme Court held that mayhem necessarily includes the infliction of great bodily harm."36 Id. at 300, 272 N.W.2d 113; see al......
-
Day v. State
...trial and the resulting discharge for violation of that right was dependent upon the accused's demand thereto. In State v. Carli (1957), 2 Wis.2d 429, 86 N.W.2d 434, 87 N.W.2d 830, this court held that a determination of whether the right to a speedy trial has been abridged depends upon the......
-
State v. Reynolds
...v. State, supra, footnote 2, 22 Wis.2d at page 461, 126 N.W.2d at page 81.5 Kopacka v. State, supra, footnote 2; State v. Carli (1957), 2 Wis.2d 429, 86 N.W.2d 434, 87 N.W.2d 830, 357 U.S. 907, 78 S.Ct. 1151, 2 L.Ed.2d 1157; State v. Sawyer (1953), 263 Wis. 218, 56 N.W.2d 811, 346 U.S. 801,......