State v. Dolan

• Decision Date: 30 September 1969
• Docket Number: No. 53,53
• Citation: 170 N.W.2d 822,44 Wis.2d 68
• Parties: STATE of Wisconsin, Respondent, v. Don E. DOLAN, Appellant. St.
• Court: Wisconsin Supreme Court

Page 822

170 N.W.2d 822

44 Wis.2d 68

STATE of Wisconsin, Respondent, v. Don E. DOLAN, Appellant.

St. No. 53.

Supreme Court of Wisconsin.

Sept. 30, 1969.

Don E. Dolan was found guilty after a trial to the court of endangering the safety of one James Hering by conduct imminently dangerous and evincing a depraved mind regardless of human life in violation of sec. 941.30, Stats. He appeals on the ground the evidence was not sufficient to sustain his conviction.

Arthur F. Lubke, Jr., Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for respondent.

HALLOWS, Chief Justice.

About 11:30 in the evening of July 24, 1966, James Hering was standing in front of the bar of his tavern at 1556 North 36th Street, Milwaukee, Wisconsin. He was engaged in conversation with several friends at the bar when he saw a Mr. Hoff run into the tavern followed by Don E. Dolan in hot pursuit with a butcher knife in his hand. Hoff ran back of Hering and behind the bar.

Hering attempted to calm Dolan but he poked Hering in the stomach with the butcher knife and told him to 'butt out.' Hering grabbed Dolan's hand and took the knife, but as he turned to go behind the bar, Dolan struck him, knocking him to the floor. Dolan asked for the knife but Hering refused. Dolan then grabbed a paring knife lying nearby, thrust it against Hering's throat and said, 'Give me my knife back or I will cut your throat.' Hering responded to this threat by either giving Dolan the knife or allowing him to take it. Hoff then jumped over the bar and ran out the front door with Dolan again armed with the butcher knife in hot pursuit.

Dolan's story is that between 7:00 and 11:30 that evening he consumed 10 or 15 drinks of whisky during a party in his home and was a little intoxicated. His wife became ill and Dolan asked Mr. and Mrs. Hoff, who lived downstairs, if they would watch his 2-and-1/2-weeks-old baby while he went to call his mother-in-law. Shortly after returning to the house, Dolan noticed the baby was not in its crib. After questioning Hoff about the baby's whereabouts, an argument ensued during which Dolan grabbed the butcher knife from the stove and chased Hoff out of the house, down the street, and into the tavern.

Dolan claims the evidence might be sufficient to find him guilty of a violation of sec. 941.20(1)(a), Stats., which makes it a misdemeanor to endanger another's safety by reckless conduct in the handling of a knife, but it is not sufficient to sustain a conviction for a violation of sec. 941.30, Stats., ¹ which creates a felony and requires conduct imminently dangerous and evincing a depraved mind, regardless of human life. Dolan contends this section must be construed narrowly and requires a conscious attempt to inflict an injury which succeeds but does not produce great bodily harm or which fails for reason not within the control of the actor. It is argued it is the attempt with a deadly weapon which makes the conduct imminently dangerous and it is the intent to injure which evinces a depraved mind.

We do not agree with the argument that sec. 941.30 is an attempt statute for second-degree murder or with the implied argument that the facts sustain a conviction under sec. 941.20(1)(a), Stats., and therefore cannot support a conviction under sec. 941.30. The real issue in this case is the proper construction of sec. 941.30. This section creates a separate crime of endangering a person's life by conduct which is of such a nature as normally would cause or be likely to cause or result in death and which is performed with an intention to do harm without concern whether such harm would result in death. Thus the conduct, including the instrumentality if one is used, must have the potentiality of causing death but such death may not be intended. The act of poking a knife in a man's stomach or holding a knife to his throat and threatening to cut him in order to force that person to do the will of the actor is not reckless conduct but rather conduct imminently dangerous and evincing a depraved mind. Dolan had the intent to harm Hering without caring for the consequences of his action even though those consequences might be death. If this were not so, Dolan would not have picked out a vital part of the body upon which to carry out his threat.

The court can think of only a few incidents of conduct more imminently dangerous to the life of a person than a knife at a vital part of his body in the hands of a threatening stranger. Such an act is not only conduct dangerous in and of itself but, coupled with the threat and stated intention to use the knife and with the ability to use it then and there, is imminently dangerous. To be imminently dangerous, there need be no slashing or other movement with the knife. The threat to use such an instrumentality and the...