The defendant has raised a multitude of issues. The pertinent facts the jury could accept, disputed in some detail, are as follows:
On September 24 and 25, 1974, Bernard Kutil and Hope Olson, both former La Crosse residents, were staying at the Holiday Inn in La Crosse. Kutil invited David Layland to a party at the motel. Layland and Kutil were involved in a fist fight and Layland was quite severely beaten. Layland left and returned with Anthony Schubert. Another fight took place and Kutil again beat Layland and Schubert. Schubert left without Layland in Layland’s car, stating he would be back. Schubert proceeded to the apartment of the defendant, Ronald Asfoor. His purpose was “to get some more people and do some hostile damage to Mr. Kutil.” Andrew Jewell and the defendant’s girlfriend were with the defendant when Schubert arrived. Schubert told Jewell he “wanted to see [Kutil] get shot.” Defendant Asfoor was standing
Defendant Asfoor drove the car to the Holiday Inn. When the three arrived, Kutil came out onto the balcony adjoining the room in which he was staying. Asfoor got out of the car and asked, “Is that the smart, . . . punk?” Schubert got out of the driver’s side of the car and Jewell got out on the passenger side. Jewell had the shotgun in his hands and was removing it from the case. Kutil jumped from the second floor balcony and began moving toward the threesome. Schubert then went back into the car to get the handgun. Schubert moved toward Kutil and Jewell with the handgun pointing at Kutil. Asfoor then forceably disarmed Schubert and was returning to the car when Jewell shot Kutil. Kutil was struck by thirty-three shotgun pellets in his right leg, three in his left leg and one in his left wrist. He continued moving toward the threesome and another fight ensued. Prior to the arrival of the La Crosse police, Jewell, Schubert and Asfoor agreed that they would tell the police that they found Kutil going through Asfoor’s car. When the police arrived Jewell recited the concocted story and Asfoor agreed by nodding his head and saying “yes.” The police took the shotgun out of the back seat and asked Asfoor whether there were any other guns in the car. Asfoor said there were and was instructed to give them to the police. He reached under the right front seat and re
A complaint was issued on September 25, 1974. In addition to the aforementioned charges of carrying a concealed weapon and party to the crime of injury by negligent use of a firearm, the complaint charged Asfoor with party to the crime of injury by conduct regardless of life, a violation of secs. 940.23 and 939.05, Stats. An information was filed on October 2, 1974.
On January 17, 1975, the newly elected district attorney moved that the counts charging party to the crimes of injury by negligent use of a firearm and conduct regardless of life be dismissed. The trial judge noted that the district attorney was moving to dismiss the felony charges and retain only the misdemeanor. After a discussion on the record where the judge pointed out he strongly disagreed with the motion to dismiss, it was granted. The judge stated he would bet his “bottom dollar that a jury would find guilt,” and that the defendant knew full well if he got before a jury “he was probably in trouble.” Subsequent to the dismissal, it became known that Asfoor and members of his family had contributed to the district attorney’s election compaign fund. This issue received editorial and front page coverage in the La Crosse papers. Because of the publicity and the possible conflict of interest, the district attorney requested that a special prosecutor be appointed. A special prosecutor was appointed and at the same time the court, sua sponte, ordered that the dismissal of the two charges be vacated. The court stated that if the special prosecutor believed these two counts should be dismissed he could bring such a motion and it would be granted. The defense attorney maintained that the court lost
The evidence was somewhat conflicting concerning what occurred prior to the shooting. Anthony Schubert was given immunity and was called by the state; however, the defense confronted him with prior inconsistent statements. Schubert also testified that Asfoor threatened to beat him up if he testified against Asfoor. On May 15, 1975, the jury found Asfoor guilty of both charges. Postconviction motions were made and denied. The defendant was sentenced to one year in the Wisconsin State Prison on the negligent shooting charge and six months in the county jail concurrently on the concealed weapons charge. The sentence was stayed pending appeal.
The defendant presents fourteen issues which he contends are grounds for reversal. We have rephrased them to some degree and view them as eight issues:
1. Whether the trial court lost jurisdiction over the charge of injury by negligent use of a weapon when it dismissed it.
2. Whether the complaint stated probable cause to support the charges of injury by negligent use of a weapon and going armed with a concealed weapon.
3. Whether the crime of injury by negligent use of a weapon committed by intentionally aiding and abetting requires specific intent and whether this is a crime known to law.
4. Whether there was error in the submission of jury instructions concerning both charges.
6. Whether secs. 940.24(1) and 941.23(1), Stats., as applied, are vague, overbroad and indefinite and therefore unconstitutional.
7. Whether the trial judge was biased.
8. Whether the sentence classification of secs. 940.24 and 940.08, Stats., is a deprivation of equal protection of the laws.
The defendant contends that the trial court lost its jurisdiction over the sec. 940.24(1), Stats., charge, injury by negligent use of a weapon, when it dismissed it on January 17, 1975. In support of this argument he cites 22 C.J.S., Criminal Law, sec. 165. The following quote from that section is helpful:
“As a general rule the jurisdiction of a court depends on the state of facts existing at the time it is invoked, and once jurisdiction of the person and subject matter attaches it continues until final disposition or determination of the case in the mode prescribed by law.” Id. at 422.
Once jurisdiction has attached it continues until final disposition. The dismissal by the circuit judge of two of the three counts in the information was not the final disposition. Jeopardy had not attached.
1
The dismissal was without prejudice and the charges could be reinstated. The circuit court had subject-matter jurisdiction as to the original charges. Wis. Const., art. VII, sec. 8. It had the power to determine the facts and apply the
“(1) In a trial to the court without a jury when a witness is sworn;
“ (2) In a jury trial when the selection of the jury has been completed and the jury sworn.”
It is also argued that in vacating the order dismissing the charges the trial court failed to recognize the discretion of the prosecutor. The record does not bear out this contention. The trial court recognized the prosecutor’s discretion: First, it dismissed the charges on motion of the district attorney, although he strongly disagreed with
The defendant next argues that the complaint failed to state probable cause to support jurisdiction of the court under the fourth amendment. As the state notes, the fourth amendment concerns unreasonable searches and seizures and probable cause for the issuance of warrants. The arrest in this case was warrantless and there was no search. The arrest was not challenged, and at first glance this argument seems to be a non sequitur. However, the defendant did challenge the complaint on the basis that probable cause was not shown. It is not entirely clear from the record, but it appears that the motion challenging the complaint was made prior to the preliminary examination. Sec. 971.31(5) (c), Stats., requires that this motion be made prior to the preliminary. Thus, the issue was preserved.
The complaint issued subsequent to a valid arrest must meet probable cause requirements.
State ex rel. Cullen v. Ceci,
“While its purpose is no longer to authorize the seizure of the person of the defendant, it is the jurisdictional requirement for holding a defendant for a preliminary examination or other proceedings. The face of the complaint and any affidavits annexed thereto must recite probable cause for defendant’s detention.” Id. at 442-43,173 N.W.2d at 179 .
In this case the complaint answered the essential queries expected of it. The complaint made it clear to the defendant “that he is charged with a crime, what the
Asfoor was charged with intentionally aiding and abetting the commission of the crime of injury by negligent use of a weapon. The elements of aiding and abetting are that a person:
“(1) [Undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further (2) he consciously desires or intends that his conduct will yield such assistance.” Hawpetoss v. State,52 Wis.2d 71 , 78,187 N.W.2d 823 , 826 (1971); State v. Nutley,24 Wis.2d 527 , 555,129 N.W.2d 155 , 157 (1964), cert. denied,380 U.S. 918 .
The defendant makes two arguments relating to this charge. The first is that the intent of the aiding and abetting section of the party to a crime statute must be specific intent. The second is that the crime of injury by negligent use of a weapon by aiding and abetting is unknown to the law.
The essence of the first argument is that an aider and abettor cannot be guilty unless it is shown that the crime which was committed was the specific crime which the aider or abettor intended be committed. This argument is refuted by
State v. Cydzik,
It is also argued that it is impossible to intend the crime of negligent injury by use of a weapon. It is true that intent and negligence are mutually exclusive and one cannot intend to injure someone by negligent conduct. However, there are often many intentional acts which lead to an injury caused by negligence. For example, the negligent driver of a car involved in a head-on collision intended to drive his automobile. He also intended to pass the slow moving vehicle in front of him, but he did
In State v. Cydzik, supra, we indicated clearly that one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts. Liability of this character is not limited to conspirators. Under well established law:
“One may aid or abet in the commission of a crime without having previously entered into a conspiracy to commit it. . . . Moreover, the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged. Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendant’s knowledge are questions of fact for the jury.” 6
Although it may be admitted that the words of sec. 939.05, Stats., would bear Asfoor’s construction, we find in the statute no sufficiently clear intent to overturn long and widely accepted law, and the legislative history of the statute confirms that no such result was intended. 7
The trial court, as required by
State v. Simpson,
“Counsel and the court should nonetheless remain responsible for ensuring that the jury is adequately instructed as dictated by the needs of the individual case, and to that end should modify and supplement the pattern instructions whenever necessary.” (Emphasis supplied.)
A pattern instruction had been agreed upon but because of erroneous argument of counsel the court had to supplement this instruction. Counsel had submitted instructions concerning his theory of necessity of specific intent and these had been rejected by the court. In spite of this he went ahead and made his argument concerning specific intent to the jury. He should not have been surprised that the judge corrected the misstatement and cannot now fairly cry “foul.”
The defendant also argues that the court erred in refusing to give the jury instruction he submitted on going armed with a concealed weapon. The instruction submitted by the court was Wis J I — Criminal, 1335. The court stated that the weapon must have been concealed. The word “concealed” has a plain meaning but the court clarified the meaning for the jury by stating “[i]f a weapon is hidden from ordinary observation then it is concealed.” “It was the defense theory of the case that any concealment was inadvertent. . . , that the gun was not such as to be available for immediate use. . . .” This theory was covered by the instruction given. If the jury thought the gun was placed under the seat inadvertently, it presumably would not have convicted. Concealing or hiding a weapon precludes inadvertence. When the court explained what “going armed” meant, it used language of this court in
Mularkey v. State,
Asfoor argues that because “negligence cannot be intended in advance” it must be shown that “the defendant did something to aid the perpetrator while the crime was happening.” The focal point of the defendant’s activities need not be so narrow. While Asfoor may have done nothing to aid Jewell at the instant the crime was committed, he had earlier acted in such a way as to assist Jewell. Various intentional acts may lead to an unintentional injury caused by negligence. The question is whether the defendant’s acts were a proximate cause of the victim’s injuries. This is a question for the jury. The defendant did disarm one of his companions while another shot Bernard Kutil, but earlier the defendant drove Jewell to the motel, placed a weapon on the floorboard of his car and pointed out Kutil. All of this evidence was before the jury. There was conflicting evidence and the choice was for the jury. In reviewing the sufficiency of the evidence this court will not retry a criminal case on the facts of record. 9 The test on review is whether the jury acting reasonably could be so convinced. 10 Only if this court holds as a matter of law that the defendant’s acts were so far removed from the injury that they could not be a cause should it hold that the evidence was insufficient to support the conviction.
Asfoor also argues that the evidence was insufficient to support the conviction of the charge of going armed with a weapon. The basis for this argument is that
Asfoor contends that if his convictions were sustained, both secs. 939.05(2) (b), Stats., party to a crime, and 941.23(1), going armed with a concealed weapon, would be applied in such a manner as to be unconstitutionally vague, indefinite and overbroad. Other than the mere statement of this argument, no supporting analysis is offered. The reason no analysis was offered is there is little to support this claim. The statutes, as applied, are not vague, indefinite or overbroad.
The defendant argues that the trial judge’s failure to recuse himself for bias and excessive interjection of self in behalf of the prosecution denied the defendant a fair trial. When the district attorney moved that two of the charges pending against the defendant be dismissed, the trial court opposed this motion. Although he eventually granted the motion, the judge made a number of remarks concerning his belief that a jury would find the defendant guilty. Asfoor contends that these remarks demonstrated the bias of the judge and that he should have recused himself when the motion for recusal was made. Ordinarily the trial court’s remarks would normally be considered inappropriate; however, they were entirely appropriate in the context in which they arose. The judge was expressing his opinion that there was probable cause to believe the defendant committed the crimes charged.
Although the judge acted fairly in this case, in some situations he should recuse himself. “The trial judge should recuse himseif whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned.” ABA Standards,
The Function of the Trial Judge,
sec. 1.7 (1972). The trial judge here had no doubt of his ability to preside impartially in this case. The question then becomes Whether there was any appearance of impartiality.
Code of Judicial Ethics,
The final argument concerning the charge of injury by negligent use of a weapon is that a conviction under sec. 940.24(1), Stats., violates the equal protection clause of the Fourteenth Amendment and the Eighth Amendment in that a conviction of injury by negligent use of a weapon is a felony while conviction of homicide by negligent use of a weapon, sec. 940.08, Stats., is a misdemeanor. Before considering whether there is a deprivation of equal protection it must be determined whether sec. 940.24(1) is a felony and sec. 940.08 a misdemeanor.
The rationale for Gaynon does not apply to this case because the legislature made a deliberate change. A violation of sec. 940.24(1), Stats., is a felony. 15 A violation of sec. 940.08 is a misdemeanor because it is not punishable by imprisonment in the state prison.
Sec. 940.08(1), Stats., provides as follows:
“Homicide by negligent use of vehicle or weapon. (1) Whoever causes the death of another human being by a high degree of negligence in the operation or handling of a vehicle, firearm, airgun, knife or bow and arrow may be fined not more than $1,000 or imprisoned not more than one year in county jail or both.”
Sec. 940.24 (1), Stats., provides as follows:
“Injury by negligent use of weapon. (1) Whoever causes bodily harm to another by a high degree of negligence in the operation or handling of a firearm, airgun, knife or bow and arrow, may be fined not more than $1,000 or imprisoned not more than one year or both.”
The only differences between these two statutes are that sec. 940.08(1) deals with homicide rather than injury, it includes homicide by operation of a vehicle, and it designates the place of imprisQnment. The defendant contends that these statutes violate the equal protection of the laws. One who causes the death of another human being by a high degree of negligence in the operation or handling of a firearm commits a misdemeanor, while someone who causes bodily harm in the same manner commits a felony.
“In considering the constitutionality of a statute it is relevant to observe that legislative enactments are presumptively constitutional and that this court will sustain a statute against attack if there is any reasonable basis for the exercise of the legislative power.”
Dane County v. McManus,
We are unable to conceive of any reason to support the statutory discrimination of the legislature. It seems probable that the reason that sec. 940.08, Stats., is a misdemeanor is because it contains the crime of death by negligent use of a vehicle and the legislature has made a policy determination that this should be a misdemeanor. But this cannot justify the discrimination produced by these statutes. The same negligent conduct may be a
We conclude that the penalty provision of sec. 940.24(1), Stats., when contrasted to the penalty provision of sec. 940.08(1), is unconstitutional in that it denies equal protection of the law as required by the Fourteenth Amendment to the United States Constitution.
We declare that only the penalty provision of sec. 940.24(1), Stats., is unconstitutional because the provision is severable. 16 Its invalidity does not effect the remaining parts of the statute. The defendant Asfoor stands convicted as party to the crime of injury by the negligent use of a weapon.
With the penalty provision stricken, sec. 939.61, Stats., applies. This section provides:
“Penalty when none expressed. Common-law penalties are abolished. Whenever a person is convicted of a crime for which no penalty is expressed, he may be fined not more than $250 or imprisoned not more than one year in county jail.”
This statute as now construed makes sec. 940.24 (1) a misdemeanor, and because Asfoor stands convicted
By the Court. — The judgment of conviction under secs. 940.24(1) and 939.05, Stats., is affirmed; the sentence is vacated and remanded for the imposition of sentence not inconsistent with this opinion; the judgment of conviction and sentence for violation of sec. 941.23(1) is affirmed.
Notes
“972.07 Jeopardy. Jeopardy attaches:
See: Waite v. State,
See: State v. Chabonian,
“939.05 Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
“(2) A person is concerned in the commission of the crime if he:
“(a) Directly commits the crime; or
“(b) Intentionally aids and abets the commission of it; or
“(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not applyto a person who voluntarily changes his mind and no longer desires that the crime be committed and notifies the other parties concerned of his withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.”
The instruction was as follows: “If you are convinced beyond a reasonable doubt that the defendant Ronald Asfoor knowingly transported Andrew Jewell and Anthony Schubert from the Asfoor apartment to the Holiday Inn on September 25, 1974, with the knowledge or belief that Jewell and Schubert or either of them intended to commit some crime, and are further convinced beyond a reasonable doubt that Jewell thereafter actually committed a crime, then the defendant Asfoor was an aider and abettor in the commission of such crime.”
People v. Durham,
See Judicial Committee Report on the Criminal Code (Wisconsin Legislative Council, 1953), at pp. 4-6. With respect to sec. 939.05(2) (b) the Committee’s comment provides:
“Paragraph (b) covers those who assist in the commission of the crime. The term ‘aids and abets’ is a phrase of art which covers assistance which is rendered by words, acts, encouragement or support. It even includes presence, whether actual or constructive, if the person is present for the purpose of rendering assistance if necessary. See Black’s Law Dictionary and cases cited therein. Although the term ‘aid and abet’ has always been construed to mean assistance with knowledge that the actor is aiding and abetting in the production of a criminal result, ‘intentionally’ was added to emphasize this fact.”
United States v. Clarke,
State v. Chacon,
Hicks v. State,
Sec. 971.20, Stats.;
State v. Garner,
State ex rel. Mitchell v. Bowman,
“939.60 Felony and misdemeanor defined. A crime punishable by imprisonment in the state prison is a felony. Every other crime is a misdemeanor.”
“973,02 Place of imprisonment when none expressed. When a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, 1) a sentence of less than one year shall be to the county jail, 2) a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and 3) a sentence of one year may be to either the Wisconsin state prisons or the county jail. But in any proper case sentence and commitment may nevertheless be to the department or any house of correction or other institution as provided by law.”
State v. Postorino,
“990.001(11) Severability. The provisions of the statutes are severable. The provisions of any session law are severable. If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.”