Summary
pointing gun at person and firing is sufficient evidence of intent to kill
Summary of this case from State v. SmithOpinion
September 11, 1967. —
October 3, 1967.
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 George K. Whyte, Jr., of Milwaukee.
For the defendant in error the cause was argued by E. Michael McCann, 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.
At approximately 3 o'clock on the afternoon of August 18, 1965, the plaintiff in error (defendant hereinafter) entered Bob Jean's tavern on West State street in Milwaukee. The deceased, Donald Homann, entered the tavern about an hour later. After participating in a seven-hour card game the two men adjourned to the pool table. After a few rounds of pool, an argument ensued over who was to pay for the next game. The argument culminated when the more powerful Homann (approximately 6' 2", 200 pounds) punched the much smaller defendant and pushed him over a barstool. Following this initial altercation, Homann left Bob Jean's with his wife, who had been sitting at the bar. The defendant, armed with a pool cue, followed the Homanns from the tavern. Before the defendant went too far the bartender interceded and recovered his cue. Homann then held the defendant up against the building, struck him several times, and forced the defendant to produce his wallet from which Homann extracted $1.63. Homann then hit the defendant again and left the scene. After the defendant recovered, he drove seven blocks to his home, grabbed his shotgun and shells, and immediately returned to the tavern area. By this time the Homanns had progressed, on foot, approximately one block away from the tavern. The defendant removed his weapon from its casing, loaded it, then alighted from his automobile and took a position on the sidewalk so as to confront the Homanns.
The defendant and Donald Homann faced each other at a distance of approximately 20 feet. Mrs. Homann was standing off to the side. The defendant demanded that Donald lay defendant's money on the ground. The demand was repeated four more times. There was conflict in the testimony as to who was advancing, but when the distance between the two men had dwindled to about seven feet the defendant fired his shotgun into Donald Homann's abdomen, killing him.
Immediately after the shooting the defendant drove to the home of his brother in Sheboygan. Shortly after his arrival, he turned himself in and admitted the shooting.
On March 3, 1966, a Milwaukee county jury found the defendant guilty of first-degree murder. Judgment was entered on the jury verdict and the defendant was sentenced to life imprisonment. On February 27, 1967, the court entered an order denying defendant's motion to set aside the verdict and for a new trial because of alleged insufficiency of the evidence to support the verdict. Writs of error have been issued to review the judgment and the order denying defendant's motion.
Other facts are set forth in the opinion.
The sole issue in this case is whether the evidence presented at the trial is sufficient to prove the element of intent required for a conviction of first-degree murder.
Sec. 940.01(1), Stats., defines a first-degree murderer as "Whoever causes the death of another human being with intent to kill that person." The phrase "intent to kill" is defined in sec. 940.01(2) as meaning "the mental purpose to take the life of another human being."
The test employed in assessing the sufficiency of the evidence was recently stated in Lock v. State as:
(1966), 31 Wis.2d 110, 114, 142 N.W.2d 183.
"We have said many times that when the question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt. State v. Johnson (1960), 11 Wis.2d 130, 137, 104 N.W.2d 379; State v. John (1960), 11 Wis.2d 1, 103 N.W.2d 304; Parke v. State (1931), 204 Wis. 443, 235 N.W. 775; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502. This ultimate test is the same whether the trier of the facts is a court or a jury. State v. Waters (1965), 28 Wis.2d 148, 135 N.W.2d 768; Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101. Invariably the briefs and arguments on this issue point to what the trier of the facts could have found or what this court should determine. The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true."
We have reviewed the record and are of the opinion that there is abundant credible evidence from which the jury could have concluded, beyond a reasonable doubt, that the defendant intended to kill the deceased.
When Payne went home after Homann's attack, he was under no compulsion to return. When he decided to return to the tavern he took his shotgun with him. When he arrived at the scene the gun was unloaded and in its casing. If Payne had only wanted to frighten Homann he could have done so without putting a shell in the shotgun. If Payne was genuinely afraid of Homann he could have elected to act as a law-abiding citizen and summoned the police. According to Payne, all he wanted was his money and yet all the money that was at stake was the small amount of $1.63.
After the defendant created the confrontation he never backed down. Even if his claim that Homann was advancing on him is true, it is undisputed that Payne never attempted to extricate himself from the situation but merely held his ground and repeated his demand for the return of the money.
From across the street, and while in her bedroom, witness Elizabeth Zigan heard the argument that preceded the shooting. She testified that Homann asked the defendant, "What are you going to do with that?" and that Payne replied, "I am going to blow you in two." Defendant contends that Mrs. Zigan's testimony cannot be believed because Mrs. Homann testified that the defendant never said that he was going to blow her husband in two. But the record shows that Mrs. Homann was not present all the time at the scene of the killing. Thus, this declaration could well have been made while she was absent.
Witness Charles Johnson observed the shooting from across the street. He heard the deceased say, "You know what you will get if you shoot me," and the defendant reply, "Yes, I know, but look what you will get."
There is nothing incredible as a matter of law about the testimony of either of these witnesses.
Even without these statements, the attendant circumstances surrounding the shooting clearly indicate that Payne had an intent to kill. After losing a fight and $1.63 to the deceased the defendant went home and in about ten minutes came back to the tavern area with a lethal weapon. After returning to the area he loaded his shotgun and confronted the deceased and his wife. After a five-minute discussion he pointed his high-caliber weapon at the deceased's midsection and cooly and calmly pulled the trigger. There is sufficient credible evidence to support the conviction even without resorting to the presumption that "a person intends the natural and probable consequences of his own acts." In the instant case the natural and probable consequences of Payne's act were that Homann would be killed.
State v. Carlson (1958), 5 Wis.2d 595, 604, 93 N.W.2d 354.
By the Court. — Judgment and order affirmed.