State v. Wilson, 75-425-CR
| Decision Date | 29 March 1977 |
| Docket Number | No. 75-425-CR,75-425-CR |
| Parties | STATE of Wisconsin, Plaintiff in Error, v. Mary Levis WILSON, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Patricia S. Curley, Asst. Dist. Atty. (argued), with whom on the brief were Bronson C. La Follette, Atty. Gen., and E. Michael McCann, Dist. Atty. for Milwaukee County, for plaintiff-in-error.
Theodore J. Hodan and Richard J. Podell, Milwaukee (argued), Podell, Hodan & Podell S. C., Milwaukee, on the brief, for defendant-in-error.
The question is whether a sentence of life imprisonment, following conviction of first-degree murder, may be stayed and the defendant placed on probation.
On March 20, 1975 Mary Levis Wilson was convicted in a trial to the court without a jury of first-degree murder contrary to sec. 940.01(1), Stats. 1 in the shooting death of her husband. A sentence of life imprisonment was imposed on April 21, 1975. Execution of the sentence was stayed and Mrs. Wilson was placed on probation for fifteen years. Mrs. Wilson was also adjudged guilty of arson contrary to sec. 943.02. The state has not appealed from nor requested a writ of error directed to the judgment of conviction for arson. That conviction is not before us.
The state seeks review of the order staying execution of the sentence and placing Mrs. Wilson on probation and also review of a subsequent order of the court dated July 9, 1975 denying the state's motion of June 6, 1975 for an order vacating that portion of the judgment which stayed execution of the sentence of life imprisonment and placed the defendant on probation. The state's motion further requested the court order execution of the life sentence.
Because the issue before the court is strictly an interpretation of the statutes, a detailed recitation of the facts that gave rise to the issue is not necessary. The question of whether or not the judge abused his discretion in granting probation in this case is likewise not before the court.
This is a case of first impression in Wisconsin. Because of the policy implications involved in the present state of legislation on the subject we direct the Legislature's attention to the matter.
The trial court took the position that the first degree murder statute says, "shall be sentenced. . . ." It does not say, "shall be punished by imprisonment" nor does the statute prohibit probation. The probation statute 2 does not except sec. 940.01, Stats. from its provisions. The trial court decided it had authority to grant probation and denied the state's motions for incarceration.
Historically the legislature has used two methods of designating which crimes would not be subject to probation. One method has been to exclude the possibility of probation in the statute setting forth the punishment for a particular crime. See, e. g., sec. 161.28(1), (2) Stats. 1961. 3 The second method has been to except the possibility of probation for certain crimes in the probation statute itself. 4
Wisconsin first provided for probation by C. 541, Laws of 1909. That statute and each successive version has distinguished between withholding imposition of a sentence and staying the execution thereof. For the first thirty-eight years of its existence, the Wisconsin probation law specifically prohibited probation for certain crimes. In C. 541, sec. 2, Laws of 1909, C. 136, sec. 2, Laws of 1913, and C. 30, sec. 5 and C. 615, sec. 2, Laws of 1919, persons convicted of felonies punishable by terms exceeding ten years could not be placed on probation. In 1931, the over-ten year exception was deleted and instead fifteen specific crimes were excepted from the probation law, including first-degree murder. C. 150, sec. 2, Laws of 1931. (sec. 57.01(1), Stats. 1931).
In 1947, however, the probation law was made generally applicable to all felonies with the sole exception of abandonment. C. 477 Laws of 1947 (sec. 57.01(1), Stats. 1947). See also, Comment of Interim Committee 1947. 5 There was no exception made for the various degrees of homicide including first-degree murder.
When the penalty in excess of ten years was abandoned as the criterion for possible probation in 1931 and probation was made available to all convicted felons, except for the fifteen specific crimes therein enumerated including first-degree murder, the first-degree murder statute penalty provision read as follows:
But first-degree manslaughter was not excepted from the probation statute and the penalty provision read as follows:
Both the first-degree murder and first-degree manslaughter statutes used the words, "shall be punished by imprisonment . . ." but it is clear that after the 1931 change in the law execution of sentence was not meant to be mandatory in the case of first-degree manslaughter because the probation statute did not except first-degree manslaughter from those felonies for which probation was authorized. It thus seems clear that whether actual imprisonment was required for a particular crime depended on the probation statute, unless, of course, the particular criminal statute itself specifically excluded probation. Thus in 1947 when probation was made a possible alternative for all felonies except abandonment, probation was a possibility for first-degree manslaughter though that crime still retained a provision that one so convicted "shall be punished by imprisonment. . . ." 6 The same reasoning would apply to the probation statute applying to first-degree murder, since it contained the same language in the penalty clause.
What is said here about first-degree murder also applied to kidnapping for ransom. It was one of the crimes excepted from the probation statute. The 1931 statute on kidnapping a child for ransom, sec. 340.56, Stats. reads in part as follows:
". . . upon conviction thereof shall be punished by imprisonment in the state prison during the life of the person so convicted. . . ."
The penalty clause was couched in the same language as that for first-degree murder. In 1947 when all felonies except abandonment allowed probation the statute still maintained the same penalty language, sec. 340.56, Stats. 1947.
In 1955 the legislature made a comprehensive revision of the Criminal Code. 7 Sec. 940.01(1), Stats. 1955 reads as follows:
The penalty provisions for kidnapping for ransom, sec. 940.31(2), Stats. 1955 provided likewise that the defendant ". . . shall be sentenced to life imprisonment; . . ."
In construing a statute the primary source of construction is the language of the statute itself. State v. Consolidated Freightways Corp., 72 Wis.2d 727, 737, 242 N.W.2d 192 (1976).
In this state, courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself. Drinkwater v. State, 69 Wis.2d 60, 65, 66, 230 N.W.2d 126 (1975). This court has recognized the probation statute gives the court the option of (a) withholding sentence or (b) imposing sentence and staying its execution. Prue v. State, 63 Wis.2d 109, 112, 216 N.W.2d 43 (1974).
Sec. 940.01 clearly requires a person convicted of first-degree murder be sentenced to life imprisonment. But the statute does not prohibit option (b), above, of imposing sentence and staying execution of sentence. This is what the trial court did.
We agree with the trial court that it had such authority under the probation statute. If the legislature does not want a particular crime to be eligible for probation, it may do what it has done in the past: except the particular offense from the probation statute, as was done prior to 1947, or state in the penalty provision of the particular offense that sentence shall not be withheld or its execution stayed pursuant to the probation statute. In the case before us the statute does clearly provide that sentence shall not be withheld but it does not say that it may not be stayed.
Both the state and the defendant agree that on the issue presented here the draftsmen of C. 696, Laws of 1955, the Criminal Code, intended no change from prior law. The question, as both sides argued it, is whether the pre-1955 statutes allowed probation upon a conviction of first-degree murder.
The state's argument is that in the 1955 Code the draftsmen used the permissive word "may" in the sentencing portion of most crimes. However, in the new first-degree murder statute, the draftsmen retained the word "shall," evincing an intent that the imprisonment be mandatory. This argument does not address the point that what is mandatory is the sentence and that a stay of the sentence is not specifically prohibited.
The state makes two basic arguments in support of its contention that not only the sentence, but also imprisonment is mandatory under sec. 940.01(1). The first derives from case law. The second is based on legislative history surrounding the enactment of the present criminal code. The state cites State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540 (1946) as authority that the first-degree murder statute prior to the change in its sentencing language required mandatory imprisonment. In Drankovich at pages 439, 440, 22 N.W.2d at page 543, this court said ...
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