Drane v. StateDrane v. State
- Reporters:
- , ,
- Before:
- Wilkie
Thе sole question presented is whether there is sufficiеnt evidence to support the court in finding defendant guilty of second-degree murder. Defendant does nоt 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. 1 In essence, defendant contends that *211 Williams just turned on him and this constituted “reasonable, adequate provocation” 2 within thе “heat of passion” requirement of sec. 940.05 (1). Or in the alternative, defendant contends that his own testimony, сorroborated 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 contеmplated by sec. 940.05 (2).
However, there was ample evidence in the record that defendant himself hаd 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 determinаtion is a function lying peculiarly within the province оf the trier of fact, 3 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 pаssion” and/or “self-defense” if believed. On this record it cannot be said that the evidence supporting thе second-degree *212 murder conviction 4 is “inherently or patently incredible” 5 as a matter of law.
By the Court. — Judgment affirmed.
Notes
“940.05 Manslaughter. Whoever causes the death of another human being under any of thе following circumstances may be imprisoned not more than 10 years:
“(1) Without intent to kill and while in the heat of рassion; 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
*211 “(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 disastеr 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. 839.47, 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.
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 muedek. Whoеver causes the death of another human being by сonduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisоned 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.