State v. Vinson

68 N.W.2d 712, 269 Wis. 305, 1955 Wisc. LEXIS 486

• Court: Wisconsin Supreme Court
• Decided: March 8, 1955
• Status: Published

Opinions

Brown, J.

These facts are admitted: The appellant, Vinson, was a patron of a tavern on the evening of June 18, 1954, a time when employees of the Kohler Company were on strike. Vinson was not an employee. He came from the tavern washroom into the barroom and heard Van Ou-werkerk say to his wife: “This is not the place for us, there are too many union people in here.” Mr. and Mrs. Van Ouwerkerk then prepared to leave the place. Vinson did not know them but he was angered by the remark. He seized Van Ouwerkerk from behind, turned him around and struck him, knocking him down. As Van Ouwerkerk lay on the floor, offering no resistance, Vinson commenced kicking him and continued to do so until a striker, Gordon Billman, jumped off his stool at the bar and pushed Vinson away, saying: “Leave him alone, you want to kill him ?” Vinson then desisted with the remark: “He is a-scab.” Van Ouwerkerk was a small man, forty-nine years old, who weighed about 121 pounds. Vinson was six feet three inches tall, weighed 240 pounds, and was twenty-seven years old. There was some evidence that Vinson stamped on Van Ou-werkerk as the latter lay on the floor. Vinson denied this but did not deny the kicking.

Van Ouwerkerk was taken home and received medical attention. The physician who was called to his home that night testified that Van Ouwerkerk was coughing up blood and blood-covered sputum. On June 20th Van Ouwerkerk’s condition was worse and the doctor arranged for him to go to a hospital where, on June 21st, Van Ouwerkerk’s chest was tapped and approximately a pint of bloody fluid was removed from the pleural cavity. This operation was repeated on June 23d and also on the 26th, 29th, and 30th. On June 23d a blood transfusion was given him. X rays showed that Van Ouwerkerk had sustained fractures of four ribs. The attending physician testified that the fluid in the chest was caused by an injury which made the treatment at the hospital necessary. Van Ouwerkerk was hospitalized for twenty-two days.

Vinson has appealed from the judgment. He asks that it be reversed and he discharged or that a new trial be granted him. His motion after verdict for a new trial was presented in the following words:

“Mr. Quick: If the court please, I think that perhaps the best way to proceed at this time is merely to give our reason for the request for a new trial, that is short and simple: We do not believe the state has proved an intent to do great bodily harm.

“Court: The motion is denied.”

Appellant’s original appeal brief states that this alleged failure of proof is one of the two questions which are before this court on the appeal. Having been first presented to the trial court in the motion for a new trial, it is undoubtedly a question now before us. In the same brief appellant asserts that another question is raised by the appeal, namely, that the trial court erred in not including in the verdict a question which would permit the jury to find Vinson guilty of assault and battery. In his reply brief he raises the additional points of law (1) that it was error for the court to include in the verdict a question rvhether Vinson was guilty of a “simple assault” and (2) that there were errors in several of the court’s instructions to the jury. To entitle an appellant to present to the appellate court such matters as alleged errors in the charge to the jury or in the verdict submitted to the jury, the allegations of error must first be presented for the consideration of the trial court in the motion for a new trial. Ferry v. State (1954), 266 Wis. 508, 510, 511, 63 N. W. (2d) 741.

Appellant’s motion presented to the trial court only the question of whether the state had succeeded in proving beyond a reasonable doubt that, in assaulting Van Ouwerkerk, Vinson had the intent to do great bodily harm; and that is the only question with which, for the reasons given in Ferry v. State, supra, we will deal.

The information against Vinson charges him with a violation of sec. 340.41, Stats., which declares that “Any person who shall assault another with intent to do great bodily harm shall be punished . . .” in the manner provided. Such an assault constitutes a felony and the specific intent to do great bodily harm is an essential element of the crime charged. Where the intent is an essential element the burden is on the prosecution to prove that the accused had such an intent, or to show facts from which it may be presumed. 22 C. J. S., Criminal Law, p. 883, sec. 568.

In State v. Kuenzli (1932), 208 Wis. 340, 242 N. W. 147, we had an embezzlement case in which it was necessary to prove a fraudulent intent as an essential element of the crime. The appellant contended that the intent was not proved. Justice Wicichem said (p. 347):

“. . . intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it. The jury was under no obligation to accept the direct evidence of intent furnished by the defendant, and must be permitted to infer intent from such of defendant's acts as objectively evidence his state of mind.”

The violence of Vinson’s attack on Van Ouwerkerk, the continuation of the attack by kicking while Van Ouwerkerk lay helpless on the floor, the serious injuries which Vinson inflicted, the disproportion in the size and age of the two men, which removed fear of personal danger to Vinson from reprisal by Van Ouwerkerk, are matters of evidence which the jury was entitled to consider when reaching a conclusion concerning Vinson’s state of mind while he carried on the assault. It is quite impossible to conclude under such circumstances that in so doing Vinson lacked an intent to hurt Van Ouwerkerk and hurt him badly. Contrary to appellant’s contention, the evidence, and the inferences from it which it was the province of the jury to draw, established beyond a reasonable doubt that the assault was made by Vinson with the intent to inflict great bodily-harm on Van Ouwerkerk.

By the Court. — Judgment affirmed.

Currie, J., took no part.