State v. Vinson

• Decision Date: 08 March 1955
• Citation: 68 N.W.2d 712,269 Wis. 305
• Parties: STATE of Wisconsin, Respondent, v. William Paul VINSON, Appellant.
• Court: Wisconsin Supreme Court

Page 712

68 N.W.2d 712

269 Wis. 305

STATE of Wisconsin, Respondent, v. William Paul VINSON, Appellant.

Supreme Court of Wisconsin.

March 8, 1955.

Rehearing Denied May 3, 1955.

See 70 N.W.2d 1.

A jury found appellant guilty of committing an assault upon one Willard Van Ouwerkerk with intent to do great bodily harm. The trial court adjudged him guilty and sentenced him to a term of not less than one year nor more than two years imprisonment in the State prison. The crime is defined and the penalty prescribed by section 340.41, Stats.

Max Raskin, Milwaukee, David Rabinovitz, Sheboygan, Wm. F. Quick, Milwaukee, of counsel, for appellant.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., for respondent.

BROWN, Justice.

These facts are admitted: The appellant, Vinson, was a patron of a tavern on the evening of June 18, 1954, a time when employees of the Kohler Company were on strike. Vinson was not an employee. He came from the tavern washroom into the bar room and heard Van Ouwerkerk say to his wife: 'This is not the place for us, there are too many union people in here.' Mr. and Mrs. Van Ouwerkerk then prepared to leave the place. Vinson did not know them but he was angered by the remark. He seized Van Ouwerkerk from behind, turned him around and struck him, knocking him down. As Van Ouwerkerk lay on the floor, offering no resistance, Vinson commenced kicking him and continued to do so until a striker, Gordon Billman, jumped off his stool at the bar and pushed Vinson away, saying: 'Leave him alone, you want to kill him?' Vinson then desisted with the remark: 'He is a _____ scab.' Van Ouwerkerk was a small man, forty-nine years old, who weighed about 121 pounds. Vinson was six feet three inches tall, weighed 240 pounds and was twenty-seven years old. There was some evidence that Vinson stamped on Van Quwerkerk as the latter lay on the floor. Vinson denied this but did not deny the kicking.

Van Ouwerkerk was taken home and received medical attention. The physician who was called to his home that night testified that Van Ouwerkerk was coughing up blood and blood covered sputum. On June 20 Van Ouwerkerk's condition was worse and the doctor arranged for him to go to a hospital where, on June 21 Van Ouwerkerk's chest was tapped and approximately a pint of bloody fluid was removed from the pleural cavity. This operation was repeated on June 23 and also on the 26, 29 and 30. On June 23 a blood transfusion was given him. X-rays showed that Van Ouwerkerk had sustained fractures of four ribs. The attending physician testified that the fluid in the chest was caused by an injury which made the treatment at the hospital necessary. Van Ouwerkerk was hospitalized for twenty-two days.

Vinson has appealed from the judgment. He asks that it be reversed and he discharged or that a new trial be granted him. His motion after verdict for a new trial was presented in the following words:

'Mr. Quick: If the court please, I think that perhaps the best way to proceed at this time is merely to give our reason for the request for a new trial, that is short and simple: We do not believe the state has proved an intent to do great bodily harm.

'Court: The motion is denied.'

Appellant's original appeal brief states that this alleged failure of proof is one of the two questions which are before this court on the appeal. Having been first presented to the trial court in the motion for a new trial, it is undoubtedly a question now before us. In the same brief appellant asserts that another question is raised by the appeal, namely, that the trial court erred in not including in the verdict a question which would permit the jury to find Vinson guilty of assault and battery. In his reply brief he raises the...