WESTON, Plaintiff in error, v. STATE, Defendant in error.
June 4—June 25, 1965.
The defendant claims that all he asked for was a mistrial but the trial court granted him a new trial. The trial court cannot be foreclosed from granting the relief which necessarily follows from the request for a mistrial. A mistrial is not a judgment of acquittal and, therefore, normally the defendant should expect to be tried again. Early in the history of this state it was held it was not error for a court to grant a new trial because the defendant had not asked for it. In re Keenan, supra.
By the Court.—Judgment and order affirmed.
For the defendant in error there was a brief by Bronson C. La Follette, attorney general, Hugh R. O‘Connell, district attorney of Milwaukee county, and Donald W. Steinmetz, first assistant district attorney, and oral argument by Aladin A. DeBrozzo, deputy district attorney.
BEILFUSS, J. Defendant presents two issues on this appeal: (1) Did the trial court commit prejudicial error by not submitting verdicts and instructions on manslaughter and lesser degrees of homicide? And (2) did the trial court exceed its jurisdiction when it imposed the consecutive sentence?
Defendant‘s position is that the evidence warranted submission of a form of verdict and instruction on manslaughter.
Neither in the briefs nor at argument does he pursue the alleged error in failing to submit lesser degrees of homicide based upon recklessness and negligence. Clearly, defendant‘s acts were not negligent nor reckless and the trial court‘s refusal to submit this alternative to the jury was not error.
Sub. (1) of the manslaughter statute (
“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; or
“(2) A crime which is a less serious type of criminal homicide than the one charged.”
The main thrust of defendant‘s argument is that the standard to be applied is one which gives effect to the particular defendant‘s state of mind. Defendant submits a standard somewhere between an “objective” and “subjective.” His authority, in general, may be found in the opinion of Mr. Justice WILKIE, concurring in State v. Hoyt, supra, page 298 et seq.
The argument is that we must consider defendant‘s limited education, his considerable drinking, and his outrage in having been tricked or duped by Ryan and Mrs. Milligan. The totality of the day, says defendant, shows that he was laboring under such a mental derangement as to have justified an instruction on manslaughter.
In State v. Hoyt, supra, the court firmly committed itself to the long-standing rule which employs the objective standard. The majority opinion states, at page 291:
“‘Thus, with respect to provocation, the test applied is not the subjective one of whether it was sufficient to produce in defendant such passion as to cause him to kill without intent to do so. Rather it is the objective one of whether the provocation would have caused such state of mind in persons
Manslaughter has been defined as:
“That which will constitute ‘the heat of passion’ which will reduce what would otherwise be murder to manslaughter ‘is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.’ State v. Stortecky (1956), 273 Wis. 362, 372, 77 N. W. (2d) 721. It has been said that “‘the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.‘“” State v. Hoyt, supra, page 290.
Defendant was apparently disappointed over the evening events. The court must, however, decide whether defendant‘s failure to illegally satisfy his passions in Lincoln Park and his discovery of having been “duped” could reasonably amount to sufficient provocation. It does not. Under the facts of this case, and in light of the illicit purposes of the evening, this court must rule that, “Such conduct [on the part of Ryan and Mrs. Milligan] does not constitute sufficient provocation to cause such heat of passion in persons
From the moment defendant awoke on July 3d he accomplished nothing. His evening foray was manifestly asocial. Mrs. Milligan‘s tricking him is not of such great moment as to cause raging anger in an ordinarily constituted man. The facts subsequent to the Lincoln Park fiasco do not permit an instruction on manslaughter. Defendant walked many blocks back to the Milligan home. He did not have to go there. During such walk an ordinarily constituted man should have regained his composure. He could have been somewhat piqued, but not senseless with anger. Defendant was the aggressor. How does one justify taking a loaded pistol to an amorous foray? How does one justify using a pistol to recover $10? There is simply too much deliberateness—meanness—leading up to the fatal shooting.
Defendant‘s argument would protect asocial behavior. His reasoning would make successive crimes a defense to all such crimes.
The trial court‘s instruction on self-defense amply covered the evidence presented by defendant.
In our efforts to insure that those accused of crimes have the maximum protection of their rights, we must not lose sight of the fact that society is entitled to protection against rules which condone criminal violence.
Defendant claims that since the trial court, on February 8th, did not indicate whether the sentence imposed was concurrent or consecutive, it must be deemed concurrent with the sentence he was presently under.3
The trial court was advised that defendant intended to change his not-guilty pleas on the two robbery charges to guilty. The court intended to consolidate all sentencing matters on February 10th. Execution was properly postponed. Further, what was said in State ex rel. Reynolds v. County Court (1960), 11 Wis. (2d) 512, 105 N. W. (2d) 812, is apposite. In that case it was held that after sentence is imposed and the defendant received at the place of confinement, the trial court ceases to have jurisdiction to modify the sentence. Thus, it is said:
“... Wisconsin adheres to the common-law principle that a trial court has no power to revise its judgment and sentence in a criminal case after the expiration of the term or after the execution of the sentence has commenced.” (p. 515.)
“‘The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force.‘” (p. 516.)
In State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 199, 190 N. W. 121, 191 N. W. 565, we stated:
“It is a rule of general application that a court has power to reconsider the judgment and sentence in a criminal case
fined or imprisoned, he must be placed on probation as provided in ch. 57. Execution of sentence may not be stayed except as provided in ch. 57 and
Until execution (providing the term of court has not expired), the trial court had jurisdictional authority to determine whether the sentence should be concurrent or consecutive. Deferring execution or even imposition of the sentence in order to consolidate other matters before the court affecting the same defendant is not prohibited by the statutes, supra, footnote 3; nor does it appear to be an abuse of discretion in this case.
By the Court.—Judgment affirmed.
WILKIE, J. (concurring). Although I adhere to my views expressed in the concurring opinion in State v. Hoyt1 favoring the adoption of the Model Penal Code formulation as the test of provocation under