Wangerin v. State, 75--272--CR

• Decision Date: 30 June 1976
• Docket Number: No. 75--272--CR,75--272--CR
• Citation: 73 Wis.2d 427,243 N.W.2d 448
• Parties: Charles S. WANGERIN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 448

243 N.W.2d 448

73 Wis.2d 427

Charles S. WANGERIN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--272--CR.

Supreme Court of Wisconsin.

Argued June 2, 1976.

Decided June 30, 1976.

William W. Moir, III (argued), and Miller, Hayes & Werner, S.C., Sheboygan, on brief, for plaintiff-in-error.

Betty R. Brown, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.

HANLEY, Justice.

Three issues are presented on this appeal:

1. Was there sufficient evidence to establish that the defendant conducted himself in a manner that was imminently dangerous to another as proscribed by sec. 940.02, Stats.?

2. Was there sufficient evidence to establish that the defendant conducted himself in a manner evincing a depraved mind, regardless of life, as proscribed by sec. 940.02, Stats.?

3. Was it prejudicial error to receive evidence of defendant's flight from the scene of the incident and to receive evidence of his attempts to resist arrest?

Imminently Dangerous Conduct

The defendant contends that the evidence was insufficient to support the verdict and conviction. Under the circumstances, the test to be applied by this court in determining the sufficiency of the evidence has been set forth in Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725, 727:

'The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. . . . The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted.'

No challenge is made to the implicit finding of fact that Wangerin's conduct caused the death of Steven Rittenhouse. Wis.J.I.--Criminal, Part II, sec. 1110, reiterates that:

'The first element of second degree murder requires that the defendant's conduct was imminently dangerous to another, that is, conduct dangerous in and of itself. It must have been conduct inherently and consciously dangerous to life and not such as might casually produce death by misadventure.' (emphasis supplied)

Wangerin contends that his conduct does not equate with this element.

Defendant relies on the decision in Seidler v. State (1973), 64 Wis.2d 456, 219 N.W.2d 320, where a twenty-two year old male babysitter was originally convicted of second degree murder for causing the death of a two year old child. This court reversed the conviction, ordering a new trial on the charge of homicide by reckless conduct, sec. 940.06, Stats. After a review of the evidence, the majority concluded that there was no evidence of a conscious intent on the part of the defendant to have the child strike the metal frame or bedpost when he flung her into the bed. Such a striking was the unfortunate result.

Implicit in the majority holding in Seidler is the recognition that the evidence did not show conduct imminently dangerous to life. The opinion dwelt on the language of the early case of Hogan v. State (1874), 36 Wis. 226:

'The first condition of the statute is, that the act producing death shall be imminently dangerous to others. It has been said that every act producing death must be thus dangerous. Perhaps this is literally true. But the statute does not go on fortuitous or latent danger, but on essential and apparent danger, of the act producing death. The act must be inherently and consciously dangerous to life, not such as casually produces death by misadventure. It must be dangerous in and of itself, as committed and when committed, whether death follow it or not.' pp. 246, 247.

The real distinction between the case at bar and Seidler was the total lack of evidence there of acts undertaken with any intention of harming the deceased. The evidence indicated a purpose of throwing the victim on the bed.

We think the situation is more comparable to that in Kasieta v. State (1974), 62 Wis.2d 564, 215 N.W.2d 412. In that case, the defendant, who was physically larger than his victim and who knew that his victim suffered from Hodgkin's disease, struck her in the nose and other parts of the face with his fists. The same claim here presented was made to and rejected by this court:

'Defendant claims that his conduct, i.e., striking someone in the nose with his fist, is not imminently dangerous. However, the record establishes that defendant knew of the medical treatments that Jacqueline had been receiving and he knew that she had Hodgkin's disease. Defendant was in his late twenties at the time of the crime. He had played football and baseball in high school, had taken judo lessons and was actively racing stockcars and snowmobiles. Defendant was 5 10 and weighed about 180 pounds. The deceased had multiple bruises on her face, a superficial wound over her left eye, a wound of over one inch long on her scalp, and a fractured nose. From this a jury could reasonably infer that a beating of this nature inflicted by a man of the defendant's characteristics was conduct imminently dangerous to another.' pp....