State v. Campbell

306 N.W.2d 272, 102 Wis. 2d 243, 1981 Wisc. App. LEXIS 3289
CourtCourt of Appeals of Wisconsin
DecidedApril 21, 1981
Docket80-335-CR
StatusPublished
Cited by16 cases

This text of 306 N.W.2d 272 (State v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Campbell, 306 N.W.2d 272, 102 Wis. 2d 243, 1981 Wisc. App. LEXIS 3289 (Wis. Ct. App. 1981).

Opinions

BABLITCH, J.

The state appeals from an order dismissing a criminal complaint against the defendant for [245]*245child abuse. The issue on appeal is whether the complaint states probable cause to believe that the defendant violated sec. 940.201, Stats. We hold that it does, and reverse.

Section 940.201, Stats., provides:

Whoever tortures a child or subjects a child to cruel maltreatment, including, but not limited, to severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under s. 939.22 (14), is guilty of a Class E felony.

Section 939.22(14), Stats., defines “great bodily harm” as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

The complaint is based upon the statement of a woman who resided in the apartment next door to that occupied by the defendant, his wife, and their ten-day-old baby. It alleges that on a given date the three came to her apartment at approximately 9:30 at night. The complaint recites :

The first thing Campbell said on entering the apartment was, that he had just thrown his baby against the wall. On further questioning he said “well, I didn’t throw him against the wall but I threw him into the crib and he hit the side or something.” Later that evening she observed Carl Campbell blow marijuana smoke into the baby’s face in an attempt to induce sleep.

The complaint is silent as to whether the baby suffered any injury as a consequence of the defendant’s alleged actions. It does not allege any “severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm,” which are [246]*246the specific examples of “cruel maltreatment” enumerated in the statute.

The trial court employed the rule of ejusdem generis in concluding that physical injury to the child is a necessary element of the crime of cruel maltreatment under the child abuse statute. Under that rule, where a general term such as “cruel maltreatment” is preceded or followed by a series of specific terms, the general term is viewed as being limited to items of the same type or nature as those specifically enumerated. State v. Engler, 80 Wis.2d 402, 408, 259 N.W.2d 97, 100 (1977) ; La Barge v. State, 74 Wis.2d 327, 332, 246 N.W.2d 794, 796 (1976).

The trial court reasoned that since all of the specific terms in the child abuse statute describe a type of physical injury, the general term “cruel maltreatment” was thereby restricted to other types of physical injuries not specifically enumerated. We disagree with this conclusion.

The limitations on the principle of ejusdem generis as a rule of statutory construction were noted in Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934) :

[W]hile the rule is a well-established and useful one, it is, like other canons of statutory construction, only an aid to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate canons of statutory construction, of which the rule of ejusdem generis is only one. If, upon a consideration of the context and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were not used in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by the wider view in order that the will of the legislature shall not fail.

[247]*247The rule of ejusdem generis is not applicable unless the class or object to which the general word would be restricted is germane to the objectives of the statute. Engler, 80 Wis.2d at 409, 259 N.W.2d at 101. Nor will it be applied to restrict the meaning of a general term “ ‘if there is a clear manifestation of a contrary intent or purport.’ ” La Barge, 74 Wis.2d at 332, 246 N.W.2d at 796, quoting Sutherland, Statutory Construction, sec. 47.22 at 118 (4th ed. 1973). Moreover, the specific terms must have a “common element” defining the class to which the general term is to be restricted for the doctrine of ejusdem generis to be applicable. National Amusement Co. v. Dept. of Revenue, 41 Wis.2d 261, 272, 163 N.W.2d 625, 631 (1969).

Whether the legislature intended the child abuse statute to prohibit only those kinds of “cruel maltreatment” actually resulting in physical injury is not apparent from the face of the statute. As both parties note, its present language is ungrammatical. The verb phrase “subjects a child to cruel maltreatment,” prohibiting conduct, is followed by a series of nouns describing possible effects of conduct on a victim. It is uncertain whether the legislature intended to prohibit conduct actually causing the described effects; conduct which could, but need not cause them; or conduct “including, but not limited to,” conduct which does (or could) cause physical injuries.

Where the meaning of an enactment is not clear, and is capable of being understood in two or more senses by reasonably well-informed persons, legislative intent may be determined through the use of extrinsic aids from the statutory language in relation to its scope, history, context, and subject matter, and the object to be accomplished or evil to be remedied. Milwaukee County v. ILHR Dept., 80 Wis.2d 445, 452, 259 N.W.2d 118, 121 [248]*248(1977) ; In re Estate of Haese, 80 Wis.2d 285, 291-92, 259 N.W.2d 54, 56-57 (1977).

The original version of the child abuse statute was created by ch. 456, Laws of 1969. It contained none of the specific enumerations of physical injury contained in the present statute, but punished as a misdemeanant any person who “tortures or subjects to cruel maltreatment any child.” The original proposed version of the enactment, Assembly Bill 544, imposed the punishment on anyone who “intentionally tortures, torments or subjects to ;physical abuse or cruel maltreatment,” any child. [Emphasis supplied.] The italicized language was eliminated from the legislation ultimately enacted.

The statute in its original form was only once construed by the Wisconsin Supreme Court in State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475 (1976). In upholding the statute against a claim of unconstitutional vagueness and overbreadth, the court resorted to the common usage meaning of the term “cruel maltreatment.” The court quoted with approval from a decision of the Oregon Court of Appeals which upheld a statute punishing anyone who “cruelly mistreats and maltreats a child.”

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Bluebook (online)
306 N.W.2d 272, 102 Wis. 2d 243, 1981 Wisc. App. LEXIS 3289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-campbell-wisctapp-1981.