State v. Carter
| Decision Date | 30 September 1969 |
| Docket Number | No. 62,62 |
| Citation | 170 N.W.2d 681,44 Wis.2d 151 |
| Parties | STATE of Wisconsin, Respondent, v. Clarence CARTER, Appellant. St. |
| Court | Wisconsin Supreme Court |
The appellant (hereinafter the 'defendant') was charged with attempted first degree murder under secs. 939.32 and 940.01, Stats. Trial was had to a jury which returned a verdict of guilty. On October 9, 1967, judgment was entered and defendant was sentenced to an indeterminate term of not more than fifteen years in state prison. The defendant has appealed from the judgment of conviction.
The alleged crime occurred on February 22, 1967, in the city of Milwaukee.
Prior to that date, Dorothy Carter, wife of the defendant, had separated from the defendant and with her eight-year-old son of a previous marriage had moved into the YWCA. Later she moved into a motel which she occupied on February 22, 1967. She was forty years of age and he was sixty-one years of age. She was a music teacher; and he had been on operator of heavy construction equipment all of his adult life.
On February 22, 1967, Dorothy Carter drove to Milwaukee where she was to give a music lesson at a private home. While she was parked in front of the home the defendant pulled up behind her car and requested that she meet him at a restaurant to discuss the possibility of a reconciliation. She agreed and that evening about 9 p.m. they met at the LaJoy Restaurant.
At LaJoy's they had dinner and discussed their situation. The defendant told his wife that he had been drinking a good deal and had not been eating for a couple of weeks. After about half an hour Dorothy became nervous and left to pick up her son who was at her mother's home.
Shortly after leaving her mother's home, she noticed that the defendant was following her in his car. When she pulled into a service station, the defendant did likewise. Her efforts to get a message to the attendant were thwarted when the defendant got out of his car and asked what she was trying to do.
She then pulled out of the service station and drove until reaching a restaurant. When she stopped at the restaurant, the defendant ripped open her car door and showed a gun. He said something to the effect He told her to
She again drove on, closely followed by the defendant. Upon reaching another service station she brought her car to a stop and attempted to run to a phone located inside the station. The defendant, likewise jumped from his car and from a distance of about five feet shot her four times with a .22 caliber pistol. The defendant's only comment before firing was 'This is it.' Mrs. Carter was taken to the hospital where, after ten weeks, she recovered.
Roland J. Steinle, Jr., Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Terence T. Evans, Asst. Dist. Atty., Milwaukee, for respondent.
The defendant raises three issues on this appeal:
(1) Did the trial court commit prejudicial error in refusing to instruct the jury on crimes other than attempted murder and endangering safety by conduct regardless of life;
(2) Did the trial court commit prejudicial error in excluding from the jury's consideration facts relating to previous misconduct on the part of the defendant's wife; and
(3) Should defendant be granted a new trial in the interest of justice?
Jury Instructions.
At the conclusion of the defendant's trial the court instructed the jury on attempted first degree murder and on endangering safety by conduct regardless of life. The defendant here contends that the court committed prejudicial error in failing to instruct on certain lesser crimes.
The court did not, as requested by the defendant, instruct upon attempted second degree murder, attempted third degree murder, attempted manslaughter, and injury by conduct regardless of life.
The court's reason for refusing to instruct on the first three of these was its belief that such crimes do not exist. Such belief is warranted by sec. 939.32(2), Stats.:
'(2) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.'
Clearly intent as defined in sec. 939.23, Stats., is not an element of any of these crimes. The language of secs. 940.02, 1 940.03, 2 and 940.05, 3 Stats., is not reconcilable with the concept of attempt.
Assuming, however, that such attempted crimes exist and are offenses included within the attempted first degree murder charge, there was no error in refusing to instruct thereon.
* * * ' Devroy v. State (1942), 239 Wis. 466, 468, 1 N.W.2d 875, 877.
Thus the trial court must not only find evidence for a conviction of the lesser offense, but must also conclude that there was no reasonable ground on the evidence for a conviction of the greater offense. See Commodore v. State (1967), 33 Wis.2d 373, 147 N.W.2d 283. The record of the trial leaves little question that the evidence, it believed by the jury, would have supported a conviction for attempted first degree murder.
Since there was sufficient evidence to support...
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