State v. Vinson

• Decision Date: 03 May 1955
• Citation: 269 Wis. 305,70 N.W.2d 1
• Parties: STATE of Wisconsin, Respondent, v. William Paul VINSON, Appellant.
• Court: Wisconsin Supreme Court

Page 1

70 N.W.2d 1

269 Wis. 305

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

Supreme Court of Wisconsin.

May 3, 1955.

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.

Appellant has moved to review our decision and calls to our attention our statement which appears in the reported case, 269 Wis. 305, 308, 68 N.W.2d 712, 713, to wit:

'* * * To entitle an appellant to present to the appellate court such matters as alleged errors in the charge to the jury or in the verdict submitted to the jury, the allegations of error must first be presented for the consideration of the trial court in the motion for a new trial. (Citing case.)'

Appellant contends that the words 'in the motion for a new trial' carry the statement farther than is warranted by several of our recent decisions. We agree that they should have been omitted. However, counsel did move for a new trial and, at that time, said: '* * * our reason for the request for a new trial, * * * is short and simple: We do not believe the state has proved an intent to do great bodily harm.' This statement effectually withdrew from the trial court's consideration all questions, whether or not previously raised, except the sufficiency of the evidence, and that we discussed at length in our opinion. Counsel may not induce the trial court to pass on only one objection and then raise others when an appeal brings the case here. We consider that such other alleged errors were waived.

The principal contention in the motion for rehearing is that under the circumstances of this case we should exercise our powers of discretionary reversal, sec. 251.09, Stats., and order a new trial in the interests of justice. Both in his original brief and in the one on this motion appellant avers: 'We cannot believe that the judicial traditions of our country contemplate the denial of substantial justice by narrow interpretation of technical trial procedure,' together with other statements of similar purport. The technical points had received our consideration but, very likely carried away by counsels' rhetoric, we took too seriously the exhortation to ignore them and thus omitted from the opinion all discussion of the technical points to which appellant now turns. It may well be that the interests of justice would have been better served if we had told why there is no merit in them. Appellant asked us to consider:

(1) The court erred in not including in the verdict a question on assault and battery.

Counsel frankly concede that they have found no authority for this demand. We do not consider the omission of that question error and it certainly was not prejudicial to appellant. Indeed, if the evidence did not establish intent to do great bodily harm, it was to his advantage that the jury must acquit him for lack of question on such lesser offense on which he might be found guilty.

(2) The trial court erred in submitting the question: 'We find the defendant guilty of simple assault.'

When the court was preparing the verdict appellant's counsel said: 'The defendant requests at this time that the court submit the verdict of simple assault to the jury.' Appellant can not complain now that the court granted the request. Moreover, while the term is not found in the statutes dealing with assault without intent, 'simple assault' has been used in lieu of the statutory language by judges and lawyers too often and too long for us now to consider it prejudicial in a verdict when accompanied by adequate instructions, as it was here. See headnote 1 in State v. Wagner, 239 Wis. 634; 2 N.W.2d 229; Vosburgh v. State, 82 Wis. 168, 171, 51 N.W. 1092, 1093 ('an assault without the intent is a simple assault'); Birker v. State, 118 Wis. 108, 110, 94 N.W. 643, citing Kilkelly v. State, 43 Wis. 604, (* * * the plaintiff in error may lawfully be convicted either of an assault with the felonious intent charged, or of a simple assault and battery, or of a mere assault.')

(3) The trial court erred in instructing:

'The crime of simple assault which is included in the offense charged in the information against the defendant as a lesser charge, that is the assault only, without the specific intent to do great bodily harm, is defined in section 340.72 of the Wisconsin Statutes, the pertinent portions of which reads as follows: 'Any person who shall assault another shall be punished' etc. It will not be necessary for me to define assault for you again as I have fully explained its necessary ingredients in connection with my instructions on assault with intent to do great bodily harm.'

Appellant complains because the court did not read to the jury the full text of the section. The omitted parts concern a person who shall assault another when not excusable or justifiable, or who shall use in reference to and in the presence of another, or in reference to and in the...