Opinion
November 5, 1965. —
November 30, 1965.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Henry L. Hillard of Milwaukee.
For the defendant in error the cause was argued by Richard B. Surges, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
Joseph Williams and his wife Mamie arrived at Curley's Tap, a tavern located on Third street in Milwaukee, sometime between 8 and 9 on the night of February 3, 1962. Mrs. Williams took a seat at the bar to the right of Mrs. Arretter Sloan and Williams stood at the bar somewhat behind and between the two women. Plaintiff in error (hereinafter defendant), Upton Drane, entered the tavern, walked up behind Mrs. Sloan, and ordered a bottle of liquor. While standing there, he began to wave a $5 bill about Mrs. Sloan's face.
Although there was disagreement on other matters, the evidence (except for defendant's testimony) was substantially uncontroverted as to the ensuing events. Defendant made some vile remarks to Mrs. Sloan and Williams asked him to watch his language in the presence of the women. The two had words; Williams took off his coat and began to advance on defendant. Drane retreated backward toward the front door and at the same time transferred a gun from under his coat to his coat pocket. At this point the testimony varies.
Three patrons, Vermont Metcalfe, William Hodnett, and Ezell Shackelford, each testified that defendant shot Williams in the tavern near the door when the two men were three or four feet apart. Mrs. Metcalfe and Hodnett said that Williams then grabbed defendant and wrestled him out the front door. Shackelford had turned his back and did not see this. Mrs. Williams and Mrs. Sloan, who had moved to the back of the tavern when defendant put the gun in his pocket, and who did not actually see the shooting, stated that they knew from the sound that the shots were fired inside the tavern. Mrs. Williams later saw blood spots on the tavern floor. Mrs. Mattie Story, who was waiting for defendant outside in a car with her husband, asserted that Williams was shot as the men fought in the street. Defendant could not remember shooting Williams in the street but denied that he had fired in the tavern.
Mrs. Williams further testified that defendant responded to Williams' admonition directed toward Drane's coarse talk with a volley of profanity including a threat to "bust your . . . heart out." Mrs. Sloan just heard an exchange of remarks. Defendant testified, in effect, that Williams just turned on him out of a clear blue sky. Hodnett and Mrs. Sloan agreed that the men were about eight feet apart when Williams removed his coat, and Mrs. Metcalfe thought the distance was ten or twelve feet. Hodnett, Mrs. Metcalfe, and Shackelford were all certain that they never were closer than three or four feet to each other. Shackelford, Hodnett, and Mrs. Sloan said that Williams never struck or touched defendant, but Vermont Metcalfe claimed that Williams pulled a knife with his right hand. Mrs. Sloan denied that he had anything in his hand. No knife was ever found. Mrs. Metcalfe did not see the alleged knife again after the shots were fired and added that Williams grabbed defendant with his right hand (and his own abdomen with his left) after he was shot. She also stated that her back was to Williams as he approached. As Williams moved toward defendant, Hodnett and Mrs. Metcalfe heard him claim (in quite down-to-earth terms) that defendant had been bothering his wife. Hodnett, Shackelford, and Mrs. Metcalfe said that defendant had warned Williams not to come any further.
Williams was shot twice but did not die of the wounds until March 12, 1962. Defendant fled after the shooting, but was apprehended in February of 1964, and charged with first-degree murder. He waived a jury trial, was found guilty of the included crime of second-degree murder (sec. 940.02, Stats.) by the court, and sentenced to a term of not more than twenty-five years.
The sole question presented is whether there is sufficient evidence to support the court in finding defendant guilty of second-degree murder. Defendant does not deny shooting Williams. He argues that since there was evidence that Williams threatened him and advanced toward him with a knife, he was guilty, at best, of manslaughter pursuant to sec. 940.05(1), (2), or (4), Stats. In essence, defendant contends that Williams just turned on him and this constituted "reasonable, adequate provocation" within the "heat of passion" requirement of sec. 940.05(1). or in the alternative, defendant contends that his own testimony, corroborated by Mrs. Metcalfe, that Williams advanced with a knife in his hand, and the statements of Mrs. Metcalfe and Hodnett that Williams had warned defendant to quit bothering his wife, is a sufficient showing of "self-defense" as contemplated by sec. 940.05(2).
"940.05 MANSLAUGHTER. Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years:
"(1) Without intent to kill and while in the heat of passion; or
"(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; or
". . .
"(4) Because the pressure of natural physical forces causes such person reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another."
The complete absence of "natural physical forces" renders sec. 940.05(4), Stats., inapplicable in this case under any view of the evidence. See Comment to sec. 339.47, Stats., Wisconsin Legislative Council, 1953 Report, Vol. V, Criminal Code.
Brook v. State (1963), 21 Wis.2d 32, 42, 123 N.W.2d 535; Zenou v. State (1958), 4 Wis.2d 655, 666, 91 N.W.2d 208.
However, there was ample evidence in the record that defendant himself had instigated the fracas by his use of crude language and his threat to Williams and that Williams did not have a knife. The case turns entirely on the credibility of the witnesses and the weight to be given to their testimony. Inasmuch as this determination is a function lying peculiarly within the province of the trier of fact, the trial court could have disregarded the testimony of Hodnett, defendant, and Mrs. Metcalfe, even assuming, but not deciding, that this evidence was sufficient to have actually shown "heat of passion" and/or "self-defense" if believed. On this record it cannot be said that the evidence supporting the second-degree murder conviction is "inherently or patently incredible" as a matter of law.
Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101; Brown v. State (1965), 28 Wis.2d 383, 137 N.W.2d 53; Hemmis v. State (1964), 24 Wis.2d 346, 129 N.W.2d 209.
"940.02 SECOND-DEGREE MURDER. Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years." This is first-degree murder without the intent to kill. Brook v. State, supra, footnote 2; Zenou v. State, supra, footnote 2.
Gauthier v. State, supra, footnote 3, 137 N.W.2d at page 104.
By the Court. — Judgment affirmed.