State v. Kanzelberger
| Decision Date | 02 November 1965 |
| Citation | 137 N.W.2d 419,28 Wis.2d 652 |
| Parties | STATE of Wisconsin, Respondent, v. Margaret KANZELBERGER, Appellant. |
| Court | Wisconsin Supreme Court |
Cashman & Savage, Manitowoc, for appellant.
Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, Robert E. Koutnik, Dist. Atty., Manitowoc, for respondent.
The defendant contends (1) that the court's instructions to the jury on self-defense and evidence of previous good character were confusing and prejudicial; (2) that the verdict was contrary to the law and contrary to the evidence, and that a new trial should be granted in the interests of justice; (3) that defendant should be found not guilty by reason of being insane; and (4) that a new trial should be granted in the interests of justice because the foreman of the jury should not have been allowed to remain on the jury
The defendant's counsel, in the brief filed in her behalf, states:
The defendant was represented by competent counsel of long standing. The record, however, does not reveal a request for any specific instruction on any phase of the case except the oral request: 'And I ask the court to instruct on the privilege of self defense and on insanity.' To which the court responded, 'It will.'
The brief and argument of counsel are directed to a complaint of the instructions on self-defense and good character reputation.
The instruction on self-defense given by the court was substantially the same as Wis J I--Criminal, Part I, 805, 810. These instructions are the product of painstaking effort of an eminently qualified committee of trial judges, lawyers and legal scholars, designed to accurately state the law and afford a means of uniformity of instructions throughout the state. They are, as stated by counsel, 'the general instructions used in cases of this kind.' These uniform instructions are not infallible. However, their content is readily known and if they are considered inaccurate or prejudicial they should be challenged by written requested instructions or at least objection made on the record at the time they are given so that if they are erroneous, correction can be made before the jury arrives at a verdict. In this instance neither a request for a specific instruction nor objection to the instruction as given appear in the record.
We have examined the instruction as given and do not find it inconsistent with sec. 939.48(1), Stats., 1 nor otherwise erroneous.
The portions of the instruction complained about qualify the privilege of self-defense to the standard of 'what a person of ordinary intelligence and prudence would have done in the position of the defendant under the circumstances existing at the time of the alleged offense.'
This instruction does direct the jury to apply the objective standard of the ordinary intelligent and prudent person. However, this standard is not that of an ordinary intelligent and prudent person under any circumstances but limited to one 'in the position of the defendant under the circumstances existing at the time of the alleged offense.' In our opinion this instruction gives the jury sufficient latitude to consider all of the motivating factors at the time and place. A lesser standard could justify a wanton and malicious attack beyond that necessary for self-defense.
The instruction given on previous good character is challenged. It is the same as Wis J I--Criminal, Part I, 270, 2 and is almost verbatim the instruction approved in Niezorawski v. State (1907), 131 Wis. 166, 177, 111 N.W. 250.
We conclude there was no error in the instructions given on self-defense and on previous good reputation.
On appeal in criminal cases the test of sufficiency of the evidence is whether the "'evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt."' State v. Waters (1965), 28 Wis.2d 148, 153, 135 N.W.2d 768, 771, quoting from State v. Stevens (1965), 26 Wis.2d 451, 463, 132 N.W.2d 502.
Sec. 940.02, Stats., defines second-degree murder as follows:
'Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years.'
The evidence clearly establishes that the death of George Kanzelberger was caused by a blow or blows to the head inflicted by the defendant by means of an Indian club. Historically, the Indian club was designed for this very purpose.
The defendant's defenses were two-fold: (1) self-defense, and (2) temporary insanity.
These defenses were ably presented to the jury by counsel for defendant in the evidence adduced and argument to the jury. The jury rejected both of these defenses as they were entitled to do in their judgment under the proof before them.
Her statements made to the police and to the neighbors shortly after the act, the instrument used, the violence of the attack as evidenced by the severity of the injury, and the lack of evidence of physical struggle in the cottage constitute sufficient evidence to warrant a jury finding of second-degree murder. It is apparent the jury did not believe the defendant intended to kill her husband but they did find, upon sufficient credible evidence, that she did cause his death by conduct imminently dangerous to another and evincing a depraved mind. We have stated that second-degree murder is first-degree murder without intent to kill. 3 The jury verdict of second-degree murder cannot be set aside under the facts of this case.
The defendant urges that we re-examine and change the definition of insanity as it is used as a defense in criminal cases. The definition as given by the trial court in its instructions to the jury was taken from State v. Esser (1962), 16 Wis.2d 567, 599, 115 N.W.2d 505, 522, and is as follows:
"The term 'insanity' in the law means such an abnormal condition of the mind, from any cause, as to render the defendant incapable of understanding the nature and quality of the alleged wrongful act, or incapable of distinguishing between right and wrong with respect to such act."
The defendant does not contend that the instruction is an erroneous statement...
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...'in the position of the defendant under the circumstances existing at the time of the alleged offense.' " State v. Kanzelberger, 28 Wis.2d 652, 660, 137 N.W.2d 419, 423 (1965) cert. den., 385 U.S. 867, 87 S.Ct. 127, 17 L.Ed.2d 93; Maichle v. Jonovic, 69 Wis.2d 622, 627, 230 N.W.2d The law s......
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CRIMINAL JURY INSTRUCTIONS: A CASE STUDY.
...qualified committee of trial judges, lawyers, and legal scholars"; however, this quote comes from a 1965 case, State v. Kanzelberger, 137 N.W.2d 419, 423 (Wis. 1965), and that court was referring to the Committee in its original, or near-original form. See State v. Kanzelberger, 137 N.W.2d ......