Zenou v. State
| Decision Date | 26 June 1958 |
| Citation | 4 Wis.2d 655,91 N.W.2d 208 |
| Parties | Henri ZENOU, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
John J. Byrnes, Elkhorn, for plaintiff in error.
Stewart G. Honeck, Atty. Gen., and William A. Platz, Asst. Atty. Gen., Erwin C. Zastrow, D. A. Walworth County, Elkhorn, for defendant in error.
The principal contention of the defendant is that the circuit court erred in refusing defendant's request for appropriate instructions and submission of forms of verdict on second degree murder and manslaughter. In addition the defendant challenges acts of the court in excluding certain evidence, refusing requested instructions and deleting certain facts from a hypothetical question. The defendant also claims that the interest of justice required a new trial.
1. Submission of manslaughter. Manslaughter is now defined in part as causing the death of another human being 'without intent to kill and while in the heat of passion; * * *'. Sec. 940.05(1) Stats. That which will constitute 'the heat of passion' which will reduce what would otherwise be murder to manslaughter 'is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.' State v. Stortecky, 1956, 273 Wis. 962, 372, 77 N.W.2d 721, 726. It has been said that 'the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.' 21 Am. & Eng.Ency. of Law 2d Edition, 177 quoted in Johnson v. State, 1906, 129 Wis. 146, 159, 108 N.W. 55, 5 L.R.A.,N.S., 809. Giving defendant the benefit of every doubt, we may assume that on and after January 1 he had reasonable grounds to believe that his wife had been unfaithful, that, in taking the furniture and selling the truck, she was violating their agreement as to the division of property as he understood it, that he was frustrated by his inability to obtain an immediate solution of his difficulties from the authorities or through an attorney, that he resented Dorothy's unwillingness to discuss these matters with him on Monday afternoon, and that he felt he had been deprived of his right to see his children. None of these circumstances, either alone or in combination, meet the test of adequate provocation. His discovery of her interest in another man had become a remote circumstance by January 21. None of the difficulties over the peoperty should be expected to produce in the minds of persons ordinarily constituted the degree of passion referred to above. Just prior to the killing, he was visiting his children. Aside from the inadequacy of the provocation, there is the question of whether the evidence permitted a reasonable doubt of his intent to kill, hereinafter discussed. The court was clearly not required to submit to the jury a form of verdict and instructions on manslaughter.
2. Submission of second degree murder. First degree murder is now defined as causing 'the death of another human being with intent to kill that person or another.' Sec. 940.01 Stats. Second degree murder is defined as causing 'the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.' Sec. 940.02 Stats. If the actions and mental state of a defendant are found to be such as to make him guilty of first degree murder with the sole exception that he does not have 'the mental purpose to take the life of another human being,' he is guilty of second degree murder. The 'depravity' referred to in the definition of second degree murder is present as well in first degree murder, the difference being the absence of the design to effect death. Montgomery v. State; 1922, 178 Wis. 461, 466, 190 N.W. 105.
The test to be applied in determining whether lesser degrees of the offense charged are to be submitted on request is whether there is some reasonable ground in the evidence, in the judgment of the court, for a conviction of the lesser offense. State v. Stortecky, 1956, supra.
Putting it in another way, if the evidence, in one reasonable view, would suffice to prove guilt of the higher degree beyond a reasonable doubt, and if, under a different, but reasonable view, the evidence would suffice to prove guilt of the lower degree beyond a reasonable doubt, but leave a reasonable doubt as to some element included in the higher degree but not in the lower, the court should, if requested, submit the lower degree as well as the higher. The state's interest in justice is served by submission of both in such a case. Both the state and the defendant have a right to have the lower degree submitted so that the jury will not be subjected to the choice of either acquitting or convicting of the higher degree where it is really convinced of only the lower degree. Ordinarily, if a court is in doubt, it should submit both degrees upon request.
The evidence summarized in the statement of facts amply sustains the verdict of guilty of murder in the first degree. There is no dispute as to defendant's acts. There is overwhelming evidence of mental purpose to kill his wife. He bases his contention that second degree murder should have been submitted upon his testimony describing his own state of mind. The real question is whether that testimony could result in a reasonable doubt of his mental purpose to kill. We assume that in refusing to submit second degree murder the circuit court decided that it could not. We agree.
Other than Henri's testimony of what was in his mind, and possibly Mr. Williamson's estimate of Henri's emotional state four or six hours before, there was no evidence tending to show that Henri did not know what he was doing and intend the natural consequences. Several wounds, including the fatal one, could not have been inflicted by a mentally responsible person except with intent to kill. There was unchallenged testimony that Henri had made several statements about killing his wife. Immediately after the stabbing he said he had killed her.
Giving Henri's testimony the most favorable interpretation, it was to the effect that he bought the knife to scare his wife, that he struck the first blow or two in order to scare her, that thereafter he lapsed into a dream-like state and that the blows he then struck were essentially involuntary. Assuming that such testimony as to one's state of mind, standing alone, could be believed and result in conviction of second degree murder and not first, that is not what is before us in this record.
Here it is an undisputed fact that shortly after the killing Henri told the sheriff that he had bought the knife for the purpose of killing his wife if they did not reach a settlement. He signed, understandingly, a written statement, summarizing oral statements, that 'I wanted to kill her.' The circuit court could properly determine that Henri's testimony contradicting, but failing to deny or explain the earlier statements, was so incredible that under no reasonable view of the evidence could there be a reasonable doubt of his intent to kill.
Although a judge has no power to direct a jury to convict, and in that sense has no power to determine whether under the evidence there is no reasonable doubt of guilt, it does not follow that in deciding whether to submit a verdict for a lower degree of offense he can not determine whether the evidence permits a reasonable doubt of some element necessary to convict of the higher degree.
In a case involving somewhat similar facts, a defendant was found guilty of murder in the first degree. He had gotten into an argument with his wife and testified that she had called him bad names and that after this 'everything got black in front of (his) eyes and (he) took the knife' and killed her. There the trial court had submitted a form of murder in the second degree but the defendant was complaining because of refusal to submit a form of verdict of manslaughter in the third degree. State v. Genova, 1943, 242 Wis. 555, 8 N.W.2d 260. The court said at page 558, of 242 Wis., at page 261 of 8 N.W.2d, .
3. The court's refusal to receive certain...
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