State v. Wickstrom

• Decision Date: 03 October 1961
• Citation: 14 Wis.2d 416,111 N.W.2d 176
• Parties: STATE of Wisconsin, Respondent, v. Philip WICKSTROM, Appellant.
• Court: Wisconsin Supreme Court

Page 176

111 N.W.2d 176

14 Wis.2d 416

STATE of Wisconsin, Respondent, v. Philip WICKSTROM, Appellant.

Supreme Court of Wisconsin.

Oct. 3, 1961.

The defendant Philip Wickstrom was charged in the first count of causing the death of one Walter Warner by a high degree of negligence in the operation of a motor vehicle and in the second count of causing the death by negligent operation of a motor vehicle while under the influence of intoxicants. The case was tried to a jury which acquitted the defendant on the second count but found him guilty on the first count and recommended leniency. The court sentenced him for a term of one year in the county jail and the defendant appealed.

Elizabeth Hawkes, Washburn, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Robert N. Ledin, Dist. Atty., Washburn, for respondent.

HALLOWS, Justice.

The defendant-appellant raises three issues: (1) Should the trial court have granted his motion to dismiss at the end of plaintiff's case; (2) does the record support the verdict; and (3) should the trial court have granted a new trial?

Briefly, the evidence showed that about 1:00 p. m. on Sunday, July 27, 1958, the defendant, while driving his car on U. S. Highway No. 2 about three miles west of the city of Ashland, suddenly swerved to his left and struck the oncoming car of Walter Warner in the north lane of the highway. Warner died as a result of the collision. The defendant, who was 33 years of age and a night-worker, arose about 1:30 on the Saturday afternoon of July 26th. That evening he spent in the company of a widow and another couple in a tavern until closing time, having approximately eight beers and then proceeded to a restaurant. After leaving there sometime after 2:00 a. m., the defendant and his companion rode around in her car and finally parked behind Wickstrom's car on the outskirts of Washburn. About 5:30 in the morning, one Mabbatt came along seeking help for his disabled car. After unsuccessfully attempting by telephone to get road service, the defendant agreed to use his car to tow Mabbatt to Superior, some 70 miles away for $10. They left Washburn around 5:30 or 6:00 a. m. and the towing was done at a speed of about 30 to 40 miles an hour. On this trip, defendant was accompanied by a friend named Larson whom he found in his car and who seems to have been drunk most of the time. Upon arriving at Superior, defendant, with the $10, purchased gasoline, gave Larson a dollar and started back for Washburn. The defendant and Larson stopped at a tavern in Brule and again at an eating place and tavern at the intersection of Highways 2 and 63, some five or six miles west of the place of the accident. It is not clear just when defendant left Superior or how long they stayed in the two taverns.

Mrs. Warner, the wife of the deceased, testified that as they were proceeding westerly she saw the defendant's car approaching them, not in any erratic manner, but when it was about 60 feet away all at once it crossed the center line at a high rate of speed and struck them head-on. The Warner car was going 50 miles an hour at the time. Defendant testified Warner's car seemed to start over the center line of the road as he approached it and Warner's head appeared to be slumped down on his chest. He swerved his car the other way to avoid hitting Warner but could not say exactly when he swerved or how many feet the Warner car was away. He also testified, in answer to the question of why he swerved into Warner's lane to miss him, 'If he was going in mine, I might as well go in his.'

Defendant argues his motion for dismissal at the close of plaintiff's case should have been granted as there was not sufficient evidence at that time to submit the case to the jury. It is true, not a strong case was put in but there was enough evidence for both issues to go to the jury. After the denial of the motion, the defendant put in his case. It has generally been held when a court has the power to direct an acquittal or dismissal of a charge against the accused and has refused to direct a verdict of acquittal at the close of the prosecution's case, the introduction of evidence by the defendant, if the entire evidence is sufficient to sustain a conviction, waives the motion to direct. Wood v. Campbell, 1911, 28 S.D. 197, 132 N.W. 785; 2 Wharton, Criminal Evidence, 11th ed., p. 1521, sec. 882. See State v. Coates, 1952, 262 Wis. 469, 55 N.W.2d 353 (venue); Annotation, Directing Acquittal, 17 A.L.R. 925. No motion to dismiss was made at the close of all the testimony and the motion for a new trial did not include as a ground of error the submission of either or both counts to the jury. At the time of the submission of the case to the jury, the evidence presented a stronger jury question than it did at the close of the prosecution's case. There is no merit in the hindsight argument that because the jury acquitted the defendant on the second count, the evidence did not present a jury question and its submission necessarily placed an unfair and prejudicial burden on the defendant.

The second question is whether the record supports the verdict that defendant was guilty of a high degree of negligence. The defendant submits his cause on the definition of a high degree of negligence as set forth in State ex rel. Zent v. Yanny, 1943, 244 Wis. 342, 12 N.W.2d 45, and argues there is an insufficiency of evidence. This argument is based on the acceptance of defendant's version of crossing the center line to avoid the oncoming Warner car. In view of the testimony of Mrs. Warner and the physical position of the cars after the collision, it was a question for the jury to resolve whether the Warner car crossed the line. The jury did not believe the defendant's version. Certainly driving one's car on the wrong side of the road in the path of oncoming traffic is ordinary negligence and a violation of secs. 346.05 and 346.06, Stats. The question, under the circumstances of this case, is whether such driving constitutes a high degree of negligence. In Bussard v. State, 1939, 233 Wis. 11, 288 N.W. 187, this court reversed a conviction of manslaughter in the fourth degree under sec. 340.26, Stats. (1939), which included gross negligence. There, the defendant started his automobile after stopping for a stop light at an intersection, increased his speed without observing traffic in front of him, failed to observe an automobile being pushed by several persons, and struck the pushed car while talking to a companion. These facts were held to be insufficient to establish gross negligence, but the court stated they indicated strongly that the defendant was negligent in a high degree.

After the Bussard case, sec. 340.271(2), Stats., was enacted and was on the statute books from 1941 to 1953. That section made it a crime of negligent homicide for causing the death of a person by the operation of a vehicle at an excessive rate of speed or in a careless, reckless...