State v. Damms

Dieterich, J.

(dissenting). I disagree with the majority opinion in respect to their interpretations and conclusions of sec. 939.32 (2), Stats.

The issue raised on this appeal: Could the defendant be convicted of murder, under sec. 939.32 (2), Stats., when it was impossible for the defendant to have caused the death of anyone because the gun or pistol involved was unloaded?

Sec. 939.32 (2), Stats., provides:

“An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed *194 that intent and would commit the crime except for the intervention of another person or some other extraneous factor (Emphasis supplied.)

In view of the statute, the question arising under sec. 939.32 (2), Stats., is whether the impossibility of accomplishment due to the pistol being unloaded falls within the statutory words "except for the intervention of ... or some other extraneous factorIt does not.

In interpreting the statute we must look to the ordinary meaning of words. Webster’s New International Dictionary (2d ed.), defines “extraneous” as not belonging to or dependent upon a thing, . . . originated or coming from without.

The plain, distinct meaning of the statute is: A person must form an intent to commit a particular crime and this intent must be coupled with sufficient preparation on his part and with overt acts from which it can be determined clearly, surely, and absolutely the crime would be committed except for the intervention of some independent thing or something originating or coming from someone or something over which the actor has no control.

As an example — if the defendant actor had formed an intent to kill someone, had in his possession a loaded pistol, pulled the trigger while his intended victim was within range and the pistol did not fire because the bullet or cartridge in the chamber was defective, or because someone unknown to the actor had removed the cartridges or bullets, or because of any other thing happening which happening or thing was beyond the control of the actor, the actor could be guilty under sec. 939.32 (2), Stats. But when, as in the present case (as disclosed by the testimony), the defendant had never loaded the pistol, although having ample opportunity to do so, then he had never completed performance of the *195 act essential to kill someone, through the means of pulling the trigger of the pistol. This act, of loading the pistol, or using a loaded pistol, was dependent on the defendant himself. It was in no way an extraneous factor, since by definition an extraneous factor is one which originates or comes from without.

Under the majority opinion the interpretations of the statute are, if a person points an unloaded gun (pistol) at someone, knowing it to be unloaded and pulls the trigger, he can be found guilty of an attempt to commit murder. This type of reasoning I cannot agree with.

He could be guilty of some offense, but not attempt to commit murder. If a person uses a pistol as a bludgeon and had struck someone, but was prevented from killing his victim because he (the actor) suffered a heart attack at that moment, the illness would be an extraneous factor within the statute and the actor could be found guilty of attempt to commit murder, provided the necessary intent was proved.

In this case, there is no doubt that the pistol was not loaded. The defendant testified that it had never been loaded or fired. The following steps must be taken before the weapon would be capable of killing.

Description of weapon.

Gun or Pistol.

The pistol is state’s evidence Exhibit B.

Type of Pistol: 32 semiautomatic.

Assembly of Pistol.

A. Pistol grip or butt hand grasp.

B. Barrel.

C. Slide.

D. Trigger housing.

*196

Mechanism.

A. To load pistol requires pulling of slide operating around barrel toward holder or operator of pistol.

B. After pulling slide to rear, safety latch is pushed into place by operator of pistol to hold pistol in position for loading.

C. A spring lock is located at one side of opening of magazine located at the bottom grip or butt of gun.

D. This spring is pulled back and the clip is inserted into magazine or bottom of pistol and closes the bottom of the grip or butt of the pistol.

E. The recoil or release of the safety latch on the slide loads the chamber of the pistol and it is now ready to fire or be used as a pistol.

The law judges intent objectively. It is impossible to peer into a man’s mind, particularly long after the act has been committed.

Viewing objectively the physical salient facts, it was the defendant who put the gun, clip, and cartridges under the car seat. It was he, same defendant, who took the pistol out of the box without taking clip or cartridges. It is plain he told the truth — he knew the gun would not fire — nobody else knew that so well. In fact his exclamation was, “It won’t fire. It won’t fire.” The real intent showed up objectively in those calm moments while driving around the county with his wife for two hours, making two visits with her at her mother’s home, and drinking coffee at the home. He could have loaded the pistol while staying on the outside at his mother-in-law’s home on his second trip, if he intended to use the pistol to kill, but he did not do this required act.

The majority states: “The gun itself, which is an exhibit in the record, is the strongest piece of evidence in favor of *197 Damms’ present contention that he at all times knew the gun was unloaded. Practically the entire bottom end of the butt of the pistol is open. . . . This readily demonstrates to anyone looking at the gun that it could not be loaded!” They are so correct.

The defendant had the pistol in his hand several times before chasing his wife at the restaurant and it was his pistol. He, no doubt, had examined this pistol at various times during his period of ownership — unless he was devoid of all sense of touch and feeling in his hands and fingers — it would be impossible for him not to be aware or know that the pistol was unloaded. Pie could feel the hole in the bottom of the butt, and this on at least two separate occasions, for he handled the pistol by taking it out of the box and showing it to his wife before he took her back to her mother’s home the second time, and prior to chasing her at the restaurant.

Objective evidence here raises reasonable doubt of intent to attempt murder. It negatives intent to kill. The defendant would have loaded the pistol had he intended to kill or murder or used it as a bludgeon.

It is significant to me in arriving at this decision, that originally the following subsection was a part of that statute which is now sec. 939.32.

Sec. 339.32 (3) read as follows:

“It is not a defense to a prosecution under this section that, because of a mistake of fact or law other than criminal law, which does not negative the actor’s intent to commit the crime, it would have been impossible for him to commit the crime attempted.”

Sec. 939.32 (2), Stats., is a part of the Criminal Code, and as stated by Mr. William A. Platz, in his article in 1956 Wisconsin Law Review, entitled “The Criminal Code, Thumbnail History of the Code,” pp. 350, 353:

*198 “Six years of research, drafting and redrafting, propaganda pro and con, more redrafting, sometimes bitter disagreement, debate, compromise, and more redrafting, have culminated in the enactment of ch. 696, Laws of 1955, creating the new Criminal Code and amending many other sections of the Wisconsin statutes. Its effective date is July 1, 1956. . . .

“The objectives of the code, . . . may be summarized as follows: (1) Simplification of language. (2) Modernization in the light of altered criminal procedure. ... (4) Codification by stating in one chapter general principles applicable to all crimes and classifying crimes as nearly as possible according to the social interest protected. (5) Maintaining a fair balance between society’s interest in speedy and efficient law enforcement and its interest in protecting accused persons from unwarranted deprivation of liberty by criminal process.”

The above-mentioned sec. 339.32 (3), was stricken by the criminal code advisory committee, after what is now sec. 939.32 (2), Stats., was drafted in its present form.

This leads me to conclude that impossibility of performance is a defense and that the elimination of this defense was not contemplated to be within the purview of the language in sec. 939.32 (2), Stats.

The assistant attorney general contends and states in his brief:

“In the instant case, the failure of the attempt was due to lack of bullets in the gun but a loaded magazine was in the car. If defendant had not been prevented by the intervention of the two police officers, or possibly someone else, or conceivably by the flight of his wife from the scene, he could have returned to the car, loaded the gun, and killed her. Under all the circumstances the jury were justified in concluding that that is what he would have done, but for the intervention.”

If that conclusion is correct, and juries are allowed to convict persons based on speculation of what might have been *199 done, we will Have seriously and maybe permanently curtailed the basic rights of our citizenry to be tried only on the basis of proven facts.

I cannot agree with his contention or conclusion.

The total inadequacy of the means (in this case the unloaded gun or pistol) in the manner intended to commit the overt act of murder, precludes a finding of guilty of the crime charged under sec. 939.32 (2), Stats.