Nancy Sue McMorris, plaintiff in error (hereinafter defendant), was convicted of the crime of injury by conduct regardless of life, in violation of sec. 940.23, Stats. Trial was had to a jury. A writ of error issued to review the judgment of conviction.
In the early morning hours, the defendant and several other women were engaged in a card game at the home of one of the participants. A dispute arose between the defendant and Louise Tucker. An altercation ensued between the two women during which Tucker received a severe stab wound in her left side.
There is a sharp conflict in the evidence as to who commenced the dispute, and as to the specific acts of the two participants which culminated with the stabbing of Tucker. Each combatant testified that the other was the aggressor. There is some evidence that sometime during the incident, Tucker produced a razor. The defendant alleged that she acted in self-defense.
CONNOR T. HANSEN, J.
The issue on this appeal is whether evidence of prior specific acts, of violence by the victim of an assault, against others than the defendant, is admissible in a prosecution for injury by conduct regardless of life, when the defendant raises the issue of self-defense.
Sec. 940.23, Stats.
It is undisputed that the defendant adduced at trial sufficient evidence to raise the issue of self-defense. The trial court so instructed the jury.
Sec. 939.48, Stats.
See: Thomas v. State (1972), 53 Wis.2d 483, 192 N.W.2d 864, where the conflict in the testimony between the state's witnesses and the accused, on the issue of self-defense, did not present a factual basis for the jury to consider the issue and the trial court correctly rejected the self-defense instruction.
The defendant testified that Tucker's reputation in the community for violence was "bad." An offer of proof was made to the trial court to demonstrate that at the time the defendant and Tucker were fighting, the defendant had personal knowledge of prior violent acts by Tucker. The trial court sustained the objection of the state to the admission of this evidence. In so doing, the trial court stated that a witness cannot testify as to the reputation of another witness on the basis of his personal knowledge because the standard is the general reputation of the person in the community where he lives.
See: State v. Sabala (1966), 32 Wis.2d 95, 101, 102, 145 N.W.2d 95.
Therefore, the question before this court is whether defendant, after establishing a factual basis to raise the issue of self-defense, may introduce evidence of personal knowledge of prior acts of violence on the part of the victim to prove what the defendant believed to be the turbulent and violent character of the victim; and the conditions under which such evidence may be admissible.
Because the evidence submitted in defendant's offer of proof is pertinent to this appeal, her testimony on direct examination is set forth in detail. She testified as follows:
"Q. What knowledge, if any, did you have?
"A. What knowledge did I have? I have seen it.
"Q. What have you seen?
"A. Oh, walking in taverns and bust people upside the head with beer bottles. I have seen her take a shot at her brother-in-law. I have seen her pull guns on her brother-in-law.
"Q. What if anything are you aware of, concerning her husband?
"A. She shot him.
"Q. That is all I have. Do you want to cross-examine? Perhaps I can ask one more question. Did those events that you have testified to, occur prior to the difficulties between you and Mrs. Tucker?
"A. Yes, long before, yes."
On cross-examination, the defendant testified:
"Q. Well, you say, if I may, you say these acts took place long before the fight on July 31st, right?
"A. A-ha such as, yes some of them, when she shot her husband.
"Q. When was that?
"A. That was in 1966 or '67. But recently she haven't put a gun and took a shot at her husband. As of at her brother-in-law, about five or six months ago.
"Q. Were you there when it happened?
"A. I was right there.
"Q. Where did this happen?
"A. It happened at the Twenty Grand on the south side of the Twenty Grand, when she pulled a gun on her brother-in-law and shot at him. It happened as recently as maybe four months ago that she jumped on, come behind this man here, and her sister and hit him in the head and put him in the hospital, as recently as about four months ago.
"Q. Where did that happen?
"A. In the Twenty Grand.
"Q. What was her brother-in-law doing?
"A. Standing up and she just walked up on him. He had been into it with his wife, which is her sister."
In civil cases it has been recognized that a person's possession of a particular character trait may be an operative fact which under the substantive law determines the legal rights and liabilities of the parties and, where that character trait is in issue, that trait of character must be open to proof, including a showing of specific acts.
In actions for seduction, evidence may be admitted to show a want of chastity in the woman. Want of previous chastity may be proved by general reputation and specific acts of unchastity. Ward v. Thompson (1911), 146 Wis. 376, 382, 131 N.W. 1006; Stewart v. Smith (1896), 92 Wis. 76, 78, 65 N.W. 736.
In defamation cases, defendant may demonstrate the truth of his statements as to plaintiff's character through evidence as to the specific acts of plaintiff tending to establish such. Bilgrien v. Ulrich (1912), 150 Wis. 532, 535, 137 N.W. 759.
See also: McCormick, Evidence (2d ed. hornbook series), p. 443, sec. 187; Proposed Wisconsin Rules of Evidence, sec. 904.04, Character evidence not admissible to prove conduct; exceptions; other crimes. 56 Marq. L. Rev (1973), 210.
In criminal actions, when the reputation or character of the victim in the assault cause is not directly in issue, evidence thereof is not relevant. However, in trials for homicide or assault in which the issue of self-defense is sufficiently raised, evidence of the turbulent and dangerous character or reputation of the deceased or the victim of the assault is relevant in determining whether the victim or the accused was the aggressor, and as bearing on the reasonableness of the defendant's apprehension of danger at the time of the incident. This rule has been generally recognized by the law of Wisconsin and most other jurisdictions.
1 Jones, Evidence (6th ed.) p. 462, sec. 4:40; 1 Wharton's, Criminal Evidence (12th ed.), p. 473, sec. 228.
Where self-defense was an issue, it was prejudicial error to refuse evidence tending to show that the victim was "known to be a desperate, fighting, ruffianly man, ready to fight on the slightest occasion." State v. Nett (1880), 50 Wis. 524, 527, 7 N.W. 344.
Annot. (1965), Admissibility of evidence as to other's character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R. 3d 571, 575.
However, the particular issue on this appeal has not been presented to this court for consideration. Those jurisdictions, in which the issue has been decided, conflict as to what is the better rule. We are of the opinion the better rule is that of those jurisdictions which hold that where there is a sufficient factual basis to raise the issue of self-defense, and the turbulent and violent character of the victim is an essential element of the defense, proof should be admitted as to both the reputation of the victim and the defendant's personal knowledge prior relevant conduct of the victim.
While this court held in State v. Nett, supra, that it was prejudicial error to bar evidence tending to prove the violent character of the accused where self-defense was in issue, there is no record of the specific offer of evidence.
Annot. (1939), Admissibility on issue of self-defense (or defense of another), on prosecution for homicide or assault, of evidence of specific acts of violence by deceased, or person assaulted, against other than defendant, 121 A.L.R. 380.
Such a rule is consistent with sec. 904.05 of the Proposed Wisconsin Rules of Evidence, supra, at page 214.
We believe those jurisdictions which have adopted rules of inadmissibility of specific acts generally fail to recognize the distinction between evidence for establishing the character or reputation of the victim in the community and evidence for the purpose of explaining or proving the defendant's motive or apprehensions, by showing what he reasonably believed to be the victim's character. The court, in Mortimore v. State (1916), 24 Wyo. 452, 475, 476, 161 P. 766, stated:
". . . It is true that the general rule permits the character of the deceased, when admissible at all, to be shown only by evidence of general reputation, and not by evidence of specific acts. . . . But in several well reasoned cases it is held that former specific acts of violence of the deceased showing his brutal or dangerous disposition and character known to the defendant, that is, acts committed in his presence, or communicated to him before the homicide, are admissible in evidence, not for the purpose, primarily, of showing the deceased's character, but to explain the defendant's motive and what he might reasonably have apprehended as to the danger. . . . [Citations.]
"The authorities to the contrary seem to regard such evidence as an attempt to show the character of the deceased. But we think the distinction between evidence for that purpose and evidence to show defendant's actual knowledge of the deceased's character, in such cases, is coming to be more generally recognized, and that it is a reasonable one. The reason for it appears to us to be at least as strong, if not stronger, than that which permits proof of the general reputation of the deceased for violence. . . ."
The past conduct of a person markedly affects what others may reasonably expect from him in the future. When the accused maintains self-defense, he should be permitted to show he knew of specific prior instances of violence on the part of the victim. It enlightens the jury on the state of his mind at the time of the affray, and thereby assists them in deciding whether he acted as a reasonably prudent person would under similar beliefs and circumstances. In State v. Gordon (1935), 37 Del. 219, 222, 223, 181 A. 361, the court stated:
"The question here is whether the accused may testify to specific instances, either known to him personally, or by hearsay, of an affray in which the deceased was the aggressor and had used a knife. The state of mind of the accused is material. The jury is to pass upon his belief, that the deceased was about to attack him. Without doubt, the reputation of the deceased for violence, known to the accused, is admissible; and there seems to be no substantial reason why the belief of the prisoner should not be evidenced by knowledge of specific acts of violence, as well as by knowledge of general reputation for violence, subject, of course, to exclusion in a proper case for remoteness. No such contention is, however, made here."
When self-defense is asserted in a prosecution for assault or homicide, there is no substantial reason for the exclusion of particular violent acts of the victim, known to the defendant prior to the incident from which the charges arose. As stated in 1 Wigmore, Evidence (3d ed.), pp. 676, 677, sec. 198:
". . . when the turbulent character of the deceased, in a prosecution for homicide, is relevant . . . there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial Court's discretion; and the prohibitory considerations applicable to an accused's character . . . have here little or no force."
See: Sec. 904.05(2) of the Proposed Wisconsin Rules of Evidence, supra, at page 214.
When the issue of self-defense is raised in a prosecution for assault or homicide and there is a factual basis to support such defense, the defendant may, in support of the defense, establish what the defendant believed to be the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident.
In those instances in which the defendant failed to establish a factual basis to raise the issue of self-defense, prior specific acts of violence by the victim would have no probative value. Also, when the defendant seeks to introduce such evidence to establish his state of mind at the time of the affray, it must be shown that he knew of such violent acts of the victim prior to the affray. The admission of such evidence rests in the exercise of sound and reasonable discretion by the trial court.
"Where the evidence of propensity for violence is offered to corroborate other evidence that the victim of the assault was the aggressor, it would not be necessary to show knowledge on the part of the defendant of the victim's aggressive character. . . ." 1 Jones, Evidence (6th ed.), pp. 464, 465, sec. 4:40.
The other issues raised are not dispositive of this appeal. However, we conclude it was error to exclude the testimony offered by the defendant, and that such evidence substantially affected the rights of the defendant.
By the Court. — Judgment reversed, and cause remanded for a new trial.