State v. Whatley

• Decision Date: 09 November 1932
• Citation: 245 N.W. 93,210 Wis. 157
• Parties: STATE v. WHATLEY.
• Court: Wisconsin Supreme Court

210 Wis. 157

245 N.W. 93

STATE

v.WHATLEY.^a1

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from an order of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge.

Seaborn T. Whatley, Jr., was charged with manslaughter in the fourth degree. From an order sustaining his plea in abatement to the information, the State appeals.

Reversed and remanded.

A criminal complaint was filed on September 8, 1931, charging that the defendant on September 1, 1931, killed certain named persons by his gross negligence in violation of section 340.26, Stats. At the conclusion of a preliminary examination duly held before Theodore Berg, municipal judge of Outagamie county, the court found that “there is reasonable ground to believe the killing of these four persons, Lucy Matthes, Lena Zurn, Alice Zurn and William Marsh, was caused by the gross negligence of the defendant, Seaborn T. Whatley, Jr., and that such killing was without justification or excuse.” Accordingly an information was filed charging that the defendant did kill those four persons on September 1, 1931, by his gross negligence, without justification or excuse, in violation of section 340.26, Stats. (1929). Thereupon the defendant filed a plea in abatement, which was sustained after a hearing in the circuit court, and, from an order entered pursuant thereto on June 4, 1932, the state appealed.John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Stanley A. Staidl, Dist. Atty., and Thomas H. Ryan, Sp. Prosecutor, both of Appleton, for the State.

Benton, Bosser & Tuttrup, of Appleton, for respondent.

FRITZ, J.

[1] Upon this appeal from an order sustaining defendant's plea in abatement to an information charging him with manslaughter in the fourth degree, under section 340.26, Stats. (1929), the sole issue presented is whether or not the evidence introduced on the preliminary examination established the commission of the crime charged and a reasonable probability of the commission thereof by the defendant. As to that issue, the defendant contends that that evidence was insufficient to establish the commission by the defendant of the crime charged. On the other hand, the state contends that the evidence was sufficient to enable the examining magistrate to determine that there is probable cause to believe that the accused is guilty of the crime charged, and that the function of a reviewing court, when the sufficiency of evidence taken on a preliminary examination is challenged as in this case, is only to examine the evidence to ascertain whether there was any substantial ground for the exercise of judgment by the committing magistrate. As this court said in State ex rel. Durner v. Huegin, 110 Wis. 189, 237, 85 N. W. 1046, 1057, 62 L. R. A. 700, the reviewing court “can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. It cannot go beyond that and weigh the evidence. It can say whether the complaint will admit of a construction charging a criminal offense, or whether the evidence rendered the charge against the prisoner within reasonable probabilities. That is all. When it has discovered that there was competent evidence for the judicial mind of the examining magistrate to act upon in determining the existence of the essential facts, it has reached the limit of its jurisdiction on that point. If the examining magistrate acts without evidence, he exceeds his jurisdiction; but any act, upon evidence worthy of consideration in any aspect, is as well within his jurisdiction when he decides wrong as when he decides right.”

That rule was followed in Lundstrum v. State, 140 Wis. 141, 144, 121 N. W. 883, and Vejih v. Redford, 182 Wis. 311, 314, 196 N. W. 228, and affords the test to be applied to the evidence on this appeal.

[2] Section 340.26, Stats., upon which the complaint and information herein are based, is as follows: “Every other killing of a human being by the act, procurement or gross negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.”

The word “gross,” which is italicized in the foregoing quotation, was inserted in that provision in 1929 by a legislative enactment (Laws 1929, c. 483) which substituted that word in lieu of the word “culpable” as the adjective that defined the word “negligence” as used in that statute. Prior to that amendment this court had held that under the term “culpable negligence” as used in that statute one can be held for manslaughter in the fourth degree even though the killing is involuntary and is due to inadvertence. Clemens v. State, 176 Wis. 289, 304, 185 N. W. 209, 21 A. L. R. 1490;Kleist v. Cohodas, 195 Wis. 637, 643, 219 N. W. 366. In each of those cases that statute, in so far as it permitted of a conviction of manslaughter in the fourth degree, even though the killing was but involuntary and due to inadvertence, was severely criticised as attaching too arduous a consequence to acts and omissions of mere inadvertence, and a modification of the law by the Legislature was deliberately proposed. It is interesting and significant to note that, as originally introduced, the legislative bill, which after amendment resulted in substituting in 1929 the term “gross negligence” for the term “culpable negligence” in section 340.26, Stats., read, as far as that section was concerned, as follows:

“Section 1. Section 340.26 of the statutes is amended to read:

340.26 Every other killing of a human being by the act, procurement or gross negligence of another, except negligent homicide where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.”

As thus introduced, the italicized words “except negligent homicide” were to be inserted in section 340.26 as an additional amendment thereof. And in section 2 of that legislative bill a new offense, designated as “negligent homicide,” was created and defined as follows:

“340.26 (1) Any person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, causes the death of another, shall be deemed guilty of the crime of negligent homicide and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment in the state prison for not to exceed five years, or by both such fine and imprisonment.”

It is apparent that the proposed newly named offense of negligent homicide, as thus defined, would have included and perhaps been solely applicable to all such instances of involuntary killing, which were due to inadvertence, as theretofore amounted to violations of section 340.26, Stats. However, all provisions, which were in relation to the proposed offense designated in that bill as negligent homicide, and which were intended to declare as criminal those instances of involuntary killing that were due to inadvertence, upon the substitution of the term “gross negligence” for the term “culpable negligence” in section 340.26, Stats., were no longer to be included as violations of that section, and were eliminated from that bill by the Legislature. Nevertheless, however, the Legislature then enacted the balance of the bill, which substituted the term “gross negligence” for the term “culpable negligence,” and thereby excluded from the scope of that statute such involuntary killings by inadvertence as were theretofore within the provisions of that statute. The Legislature thereby undoubtedly intended to confine the scope of that statute, so far as the term “negligence” is concerned, to killing by “gross negligence,” which term, in 1929, and for a considerable period prior thereto, had a well–established and well–understood meaning in the law of this state. Thus in Jorgenson v. C. & N. W. Ry. Co., 153 Wis. 108, 140 N. W. 1088, 1091, this court said: “Gross negligence has received a very certain and definite meaning in the jurisprudence of this state, somewhat different from the meaning given to it in other states; it is not inadvertence in any degree.”

In Bentson v. Brown, 191 Wis. 460, 211 N. W. 132, 133, the court said: “Ordinary negligence and gross negligence are not the same, and in our state do not grade into each other. The former lies in the field of inadvertence; the latter in the field of an actual or constructive intent to injure.”

In Astin v. Chicago, Milwaukee & St. P. R. Co., 143 Wis. 477, 128 N. W. 265, 268, 31 L. R. A. (N. S.) 158, gross negligence was said to be characterized by “an absence of any care on the part of a person having a duty to perform to avoid inflicting an injury to the personal or property rights of another, by recklessly or wantonly acting or failing to act to avoid doing such injury, evincing such an utter disregard of consequences as to suggest some...