Opinion
No. State 88.
Argued September 12, 1972. —
Decided October 3, 1972.
ERROR to review a judgment and an order 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 Anthony K. Karpowitz, Legal Aid Society of Milwaukee.
For the defendant in error the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Facts.
On May 8, 1970, Warlean Henry Day, hereinafter referred to as defendant, spent some hours with his wife, Etherleen Day, in a neighborhood tavern. After they returned home, they had an argument. The wife picked up an ashtray and approached the defendant. The defendant arose from a couch, blocked the wife's swing, and "stuck" her in the chest with a pocketknife.
The defendant went to a friend's home and related what had happened. The friend called the police. When the police arrived, the wife refused to go to the hospital. A patrol wagon was called, and the wife was taken to the hospital. The wife died at the hospital. The cause of death was cardiac tamponade due to a stab wound of the heart. Upon learning of his wife's death, defendant went to the police and made a written statement.
Defendant was charged with murder' in the first degree, contrary to sec. 940.01, Stats. He pleaded not guilty. At the trial defendant testified as to previous arguments and fights with his wife, and to her striking him on previous occasions with a glass and chisel. Evidence was introduced that the wife was two inches taller and 44 pounds heavier than the defendant.
At the conclusion of testimony, defendant's counsel requested that the jury be instructed on manslaughter, sec. 940.05 (2), Stats. The trial court found that there was no basis for submitting such an instruction and denied the request. The jury was instructed on murder in the first (sec. 940.01) and second (sec. 940.02) degrees. Defendant was found guilty of murder in the second degree and sentenced to a term of not less than five nor more than twenty-five years in the state prison.
The challenge is to both conviction and sentence on the charge of second-degree murder.
Sec. 940.02, Stats., provides: "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."
On the conviction, defendant claims the trial court erred in not submitting manslaughter to the jury. Sec. 940.05 (2), Stats., provides:
" Manslaughter. Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years:
"(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 ;"
The test or standard for determining when lesser degrees of homicide than that charged are to be submitted to the jury has been clearly stated to be:
"To justify submitting lesser degrees of homicide than that charged in the information, there must be a reasonable ground in the evidence for acquittal on the greater charge and for conviction on the lesser charge. . . ."
State v. Anderson (1971), 51 Wis.2d 557, 560, 187 N.W.2d 335.
"`The key word in the rule is "reasonable." The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if "under a different, but reasonable view," the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury. . . .'"
Id. at page 561 citing State v. Bergenthal (1970), 47 Wis.2d 668, 675, 178 N.W.2d 16.
Applying that test to this case, the requested instruction and submission of manslaughter would be proper only if, under some reasonable view, the evidence was sufficient to establish guilt of causing the death of another in the exercise of self-defense. The record must make reasonable a conclusion that the defendant here killed ". . . believing that his act was necessary in self-defense but his belief was unreasonable under the circumstances. . . ."
Wis J I — Criminal, Part II, 1140, Manslaughter: Causing Death of Another Unnecessarily in the Exercise of Self-Defense, approved as a correct statement of the law in Mitchell v. State (1970), 47 Wis.2d 695, 702, 703, 177 N.W.2d 833.
In this case the record does not establish that, at the time of the stabbing, the defendant believed "that his act was necessary in self-defense." There is no evidence at all that the defendant believed his act of stabbing his wife to be necessary for his self-defense. To the contrary, the defendant expressly stated that the stabbing was an accident and that he did not intend to do it.
Id. at page 702.
Where there is no evidence that the defendant believed his act was necessary for self-defense, we do not reach the question of whether such belief could be found to be reasonable. In the case relied upon by defendant, the trial court was dealing with defendant's assertion there that her acts were in self-defense. To establish self-defense a person must establish not only that he in fact believed that he was in imminent danger of death or great bodily harm, but also that such belief was reasonable. In Hall, this court concluded there was evidence that could support a finding of self-defense. But that case turned on the question of the reasonableness of the force used by a person who believed that his act was required in self-defense. Here reasonableness is not an issue. The only question is, Did the defendant believe his act was required in self-defense? His own testimony expressly negatives such a conclusion. We find no error in the trial court's refusal to instruct the jury on unnecessarily causing death in the exercise of the privilege of self-defense. The conviction is affirmed.
Hall v. State (1969), 43 Wis.2d 95, 168 N.W.2d 205.
Sec. 939.48 (1), Stats.
In Thomas v. State (1972), 53 Wis.2d 483, 488, 192 N.W.2d 864, upholding conviction in an appeal involving self-defense instructions requested and denied, this court said: ". . . Thomas' own testimony does not sustain self- or third-party defense. He stated he cocked the gun and it went off `someway.' He stated repeatedly he did not try to kill Chiaverotti and did not fire intentionally. One exercising the privilege of self-defense intends to use force or to threaten force against another for the purpose of self-defense. Thomas' testimony, rather than sustaining his self-defense argument, sounds more like a defense of an unintentional or accidental shooting."
As to the sentence imposed, the defendant contends that the sentence of not less than five and not more that twenty-five years was excessive and an abuse of discretion.
In this state trial courts are required to state the reasons for imposing a particular sentence. Where a sentence is challenged as excessive, this court has stated that it would review the trial court's reasoning to determine if sentencing discretion was exercised on the basis of proper and relevant factors. If abuse of discretion is found, the record will be searched to determine whether in the exercise of proper discretion the sentence imposed can be sustained.
McCleary v. State (1971), 49 Wis.2d 263, 281, 182 N.W.2d 512.
Id. at pages 273, 274.
Id. at page 282.
In imposing the five-to-twenty-five-year sentence, the maximum under the statute, the trial judge set forth these reasons: Nature of offense: "Yes, this is a repetition of the same old story . . . where people have knives and they use them in anger, unjustifiably, and people die, who have every right to live."
Aggravated breach: "This could have been a verdict on either charge. . . .
". . . this offense as against murder in the first degree, of which the jury might have well convicted him under the facts. . . ."
Parole eligibility: ". . . The defendant will be eligible for parole after two years."
Pattern of conduct: Additionally, the trial judge had before him the defendant's pattern of past conduct involving weapons. The defendant had previously been convicted twice for carrying concealed weapons contrary to sec. 941.23, Stats. The record also supports finding that the defendant, on a previous occasion, in an argument with his wife, pulled a knife from his pocket and threatened or attempted to cut her with it.
In McCleary, the majority opinion quoted with approval the comment, "a good sentence is one which can be reasonably explained." Given the gravity of this offense, the aggravated nature of the breach of the statute, and the pattern of conduct evidenced by defendant's prior convictions on charges involving weapons, we find no abuse of discretion in the sentence imposed. What has been termed by this court a ". . . strong policy against interference with the discretion of the trial court in passing sentence . . ." reinforces allowing the sentence to stand. As this court said in McCleary, ". . . It is not only our duty not to interfere with the discretion of the trial judge, but it is, in addition, our duty to affirm the sentence on appeal if from the facts of record it is sustainable as a proper discretionary act." The sentence here is held to be such a proper discretionary act.
Judge LUTHER YOUNGDAHL, in Remarks Opening the Sentencing Institute Program, Denver, Colorado, 35 F.R.D. 387, 388 (1964), quoted with approval in McCleary v. State, supra, at page 282.
State v. Turtle (1963), 21 Wis.2d 147, 124 N.W.2d 9, quoted with approval in Riley v. State (1970), 47 Wis.2d 801, 802, 177 N.W.2d 838.
McCleary v. State, supra, at page 282.
By the Court. — Judgment and order affirmed.