author: Wilkie, J. Gordon, J. Currie, C. J.

text:
    State, Respondent, v. Reynolds, Appellant.

      September 10

    October 5, 1965.

      For the appellant there was a brief and oral argument by Adrian P. Schoone of Racine.
    For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Plats, assistant attorney general, and Gerald Clickner, district attorney of Racine county.
   Wilkie, J.

Two issues are presented on this appeal:

First, was appellant denied his right to a speedy trial?

Second, did the trial court err in admitting testimony that materials in possession of a confederate, apprehended with appellant, came from the site of another alleged burglary which had occurred a week earlier ?

Speedy Trial.

Sec. 7, art. I of the Wisconsin constitution and the Sixth amendment of the United States constitution guarantee an accused the right to a speedy trial. Each case involving an alleged denial of this right turns on its own facts; the facts in the instant case are these: Appellant and his coaccuseds were arrested on the evening of October 29, 1960. Two days later a complaint and warrant were issued and he was taken before a magistrate. Reynolds demanded a preliminary hearing which was set for November 7th. He subsequently waived the hearing. The information was filed December 15th and counsel was appointed at appellant’s request. On December 28th the case was remanded, upon counsel’s motion, to the court commissioner for a preliminary hearing. The preliminary was held March 1, 1961, and appellant was bound over for trial. Appellant pleaded not guilty at his April 19th arraignment and asked for a separate trial. This motion was granted and Kennedy alone was brought to trial April 26th. After the state had presented its case, the trial court directed a verdict of acquittal on two grounds: (1) Sec. 943.10 (1) (a), Stats., is not applicable to the entry of public buildings, and (2) the state had not introduced sufficient evidence to show that Kennedy had entered the school with intent to steal. On May 28th, appellant was imprisoned for a parole violation, and three days later the burglary charges against him and Strong were dismissed on the sole ground that the burglary statute did not apply to the entry of public buildings. The state appealed the Kennedy acquittal and the dismissals of the charges against Strong and Reynolds. Another attorney was appointed to represent appellant on the appeal. On February 6, 1962, this court affirmed the acquittal of Kennedy, but reversed the orders dismissing the charges against appellant and Strong. The case was remanded to the Racine county court on April 2d.

Appellant was released from prison May 29th, but the Racine county district attorney was not informed of the release. Efforts to locate appellant were unsuccessful until May 24, 1964, when the district attorney was advised by Michigan authorities that he was being held in that state. Appellant waived extradition and was returned to Wisconsin. After a jury trial, which commenced October 27th, appellant was convicted of burglary. He was represented by counsel.

In contending that his right to a speedy trial was violated, appellant points to the four-year delay between his arrest and his trial. But the “[m]ere lapse of time does not, by itself, constitute denial” of this right when the accused “is tried as soon as the orderly operation of the court permits.” Furthermore, an accused is required to take affirmative action to bring the case on for trial as a condition precedent to demanding the dismissal of the pending charges. At no time did appellant request a speedy disposition of his case. The state’s initial attempt to bring the case to trial was thwarted when appellant, at his own insistence, was granted a separate trial because his defense was antagonistic to that of Kennedy, his accomplice. Then the state had to appeal the dismissal of the charges against appellant which also came about as a result of his own motion. By the time the appeal had been decided, the case remanded, and the charge reinstated, a year and a half of the four-year period had elapsed. Shortly after the Racine county authorities learned of the results of the appeal, appellant was released from prison and absented himself from the state for nearly two years before being apprehended. Counsel was appointed for appellant after his return to Wisconsin, and after a motion to dismiss for lack of a speedy trial, he was tried and convicted. Thus, although a four-year interval might, at first blush, appear to be inordinate and unreasonable, an examination of the facts discloses that it was caused by appellant’s own motions, the orderly conduct of the business of the court, and his own flight from the state.

Appellant contends, however, that his leaving the state cannot be held against him in resolving the speedy trial issue since he gained his release from prison by virtue of the district attorney’s failure to file a detainer warrant with the prison authorities. This fact is of no import for two reasons. First, appellant cannot rely on any lapse on the state’s part when he fled the state instead of taking “affirmative action” in seeking disposition of his case. Appellant contends that he did not realize he had lost his appeal, but it is undisputed that he received a notice of appeal and although the record does not affirmatively disclose the fact, it is reasonable to assume that his attorney acted conscientiously and apprised him of the outcome. Second, only the time spent in custody, in one form or another, is considered when resolving the speedy trial question. Appellant cannot complain that he was not tried with sufficient haste when his own conduct prevented the judicial wheels from turning. If this were otherwise, a suspect who remained at large for a lengthy period, despite an outstanding warrant for his arrest, could point to the time lapse between the issuance of the warrant and his apprehension.

Evidence of Other Burglary.

Although Kennedy was found to have entered the school, he was acquitted because the proof was held insufficient to prove beyond a reasonable doubt that he entered the building with the intent to steal.

In the trial of appellant much of the evidence was the same as in the Kennedy case. Thus it was established that one door of the school had apparently been jimmied; that all of the doors were locked but could be opened from the inside; that appellant, Kennedy, and Strong came “charging out of the front entranceway;” that Strong was carrying a canvas bag containing a “hammer, maul, two drive pins, and a chisel;” that all three wore gloves even though the weather was mild; and that two crowbars, which did not belong to the school, were found in the school.

At the Reynolds trial additional evidence was introduced to show appellant’s intent to steal. The tools in the canvas bag were specifically identified as burglarious tools; there was testimony that one of the crowbars had made the marks on the door; evidence that there was a good deal of money in the superintendent’s office on the night of the break-in was introduced.

For the limited purpose of showing Reynolds’ intent to steal, the state offered evidence of a burglary at a Two Rivers school that had occurred just a week before the Burlington break-in. Witnesses testified that a Two Rivers school.had been entered and a hole knocked in a wall in order to gain access to a vault. Over $200 had been taken. Bits of tile and plaster found in the canvas bag at Burlington were sent to the FBI laboratory for comparison with samples of tile and plaster taken from the wall of the Two Rivers school. Over appellant’s objection, testimony by two FBI agents employed at the laboratory that the fragments in the bag matched the fragments from the Two Rivers school was admitted.

Evidence may be admitted “of other occurrences in which a defendant has participated, when such others are similar in facts and close to the time of the offenses for which a defendant is on trial.” This evidence is admissible not to prove the defendant guilty of the crime charged but rather to show some element of that offense. However, it must be shown that the accused had some connection with the other offense. Appellant contends that the admission of this testimony was erroneous because Strong, not he, was carrying the bag and also because the state did not specifically link him with the Two Rivers burglary. The state counters that the possession of the bag by appellant and his cohorts at the time of their arrest — regardless of who was physically toting it — constitutes sufficient nexus to the Two Rivers crime to render the evidence admissible.

In State v. Lombardi, evidence of events in which Lombardi participated at a house of ill-fame was held admissible on a charge against him for knowingly failing to enforce the laws relating to prostitution against the house. In Herde v. State, admission of evidence was allowed that the defendant had recently committed a robbery under circumstances like the one for which he was on trial. In Kluck v. State, evidence connecting a defendant with the transportation of illicit alcohol a month or so preceding the seizure of a still was held competent as tending to prove that the manufacture and traffic in illicit liquor was a continuing offense and proof of these acts tends to prove a specific element of the crime charged. In State v. Meating, involving a prosecution for concealing stolen automobiles, evidence showing concealment of other stolen automobiles was held to be properly received as tending to establish some ingredient of the offense charged. In Smith v. State, where the defendant was also charged with burglary, testimony of other offenses was held admissible to show the element of intent. Finally, in Diets v. State, in a prosecution for murder committed by the defendant when he shot a law-enforcement officer who with other officers had surrounded the home and laid seige to it, the state was permitted to introduce evidence that the defendant frequently and uniformly during the preceding years had made armed resistance to arrest and threatened to shoot the officers on sight.

In each of these cases the evidence showed that the accused had actually been involved in the other crimes, offenses, or occurrences. Here, there was no evidence that Reynolds actually was involved in the Two Rivers break-in.

The state relies on Neubrandt v. State to support its contention that this evidence was properly received even though there was no direct evidence that Reynolds was involved in the Two Rivers episode. In Neubrandt a building was entered and items belonging to the owner and a boarder were taken. The defendant had possession of all the stolen goods when arrested, and evidence that he was found with the boarder’s property was deemed properly admissible at his trial for stealing the owner’s. The instant case presents a quite different situation on the facts. Although it was not proved that Neubrandt had stolen the boarder’s property, he was implicated because all of the goods were found in his possession. None of the tools or fragments associated with the Two Rivers burglary were found in Reynolds’ possession. The state argues, however, that since the bag was carried by one of the three men when they were seized, under the circumstances possession by one is tantamount to possession by each. The danger inherent in such a theory is that this still does not tie appellant up with the Two Rivers burglary. It is reasonably conceivable that appellant joined up with Kennedy and/or Strong only subsequent to the assault on the Two Rivers school. Every doubt must be resolved in favor of the defendant.

Having failed to establish either that the bag belonged to or was in the possession of Reynolds or that he actually played a role in the Two Rivers affair, the state has not shown a sufficient connection with the other break-in. Consequently it was error to have admitted this evidence even for the limited purpose for which it was offered.

The evidence thus received in error was undoubtedly prejudicial to defendant and the judgment of conviction must be set aside and the cause must be remanded for a new trial.

We are asked by the attorney general to reconsider what was said by this court in Kennedy, wherein the majority of the court upheld the judgment of acquittal involving Reynolds’ confederate, Kennedy, stating:

“. . . the inference of intent to steal could not properly be drawn from the evidence with sufficient certainty to overcome the presumption of innocence and to meet the standard of proof beyond a reasonable doubt.”

Specifically, the attorney general urges that an inference or presumption of intent to steal “arises upon proof of the breaking and entering of a building or attempt to do so, without consent in the nighttime,” which inference or presumption “is a sufficient basis for submitting the case to the jury and for a finding by it of the element of an intent to steal in the absence of explanation by the accused.”

Under sec. 943.10, Stats., one found guilty of burglary may be sentenced to as much as ten years in prison. The statute specifically requires that the entry be “with intent to steal or commit a felony.” Thus, it not only covers an entry made “with intent to steal” but others made with intent to commit arson, a sex offense, or any other crime classified as a felony. It is conceded that it is difficult in many cases to prove the requisite intent. What the state is asking here is that, on a showing of breaking and entering a building, or an attempt to do so, without consent in the nighttime, there “arises” with nothing more, an inference that the defendant is there with intent to steal. The breaking or entering may have been with an intent to commit a felony entirely different from stealing, yet the state would infer an intent to steal. The entry may have been made with the purpose of committing a misdemeanor or for an entirely innocent purpose. We do not think it unreasonable for the legislature to require proof of “intent to steal or commit a felony” in order to gain a conviction for burglary with the attending maximum ten-year imprisonment. It should be noted that sec. 943.14, Stats., makes it a separate crime punishable by a fine of not more than $200 or imprisonment of not more than six months or both where one “intentionally enters the dwelling of another without the consent.”

It is entirely reasonable to require the prosecution to establish each element of the crime by proving each element in accordance with the prevailing standard of proof beyond a reasonable doubt. The change in the Kennedy rule advocated by the state would really do more than raise an inference that the defendant had entered the building with “intent to steal it would constitute a rebuttable presumption which would effectively destroy the normal presumption of innocence. After considering all of the arguments both pro and con as applied to the facts of this case, we see no reason for adopting the rule change suggested by the attorney general or in making any modification in the holding in Kennedy.

By the Court. — Judgment reversed, and cause remanded for a new trial in accordance with this opinion.

Fairchild, J., dissents, being of the opinion the judgment should be affirmed.

Gordon, J.

(concurring). I believe it essential to limit the prosecution to prior convictions in offering proof of previous, related conduct as a means of proving the accused’s intent to commit the crime currently charged.

Under the holding of the majority it is sufficient if the accused was personally involved in previous acts which were similar in facts and close in time to those acts for which he is presently being tried. State v. Lombardi (1959), 8 Wis. (2d) 421, 438, 99 N. W. (2d) 829.

In my opinion, it is improper to admit proof of prior misconduct unless the accused had either admitted such offense or had been found guilty thereof. We do not presume guilt; we presume innocence. This is true of current charges as well as previous incidents. In attempting to prove guilt, should the prosecution be permitted to show a defendant’s intent to commit a present crime by the mere fact of his involvement in an earlier episode? I believe that the majority’s position invites the jury to treat the accused as guilty of the earlier misconduct even though such fact has not been proved.

Even if Mr. Reynolds had been at the scene in Two Rivers, we would surely not permit any evidence as to that transaction to be offered in his current trial if he had been tried and acquitted of the previous event. For the same reason, since he is presumed innocent of such earlier event, it seems to me improper to allow proof of such event so long as the cloak of innocence relating to that episode still surrounds him.

Under the facts of State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372, it was held that there was no inference or presumption of an intent to steal under sec. 943.10 (1), Stats., by reason of one’s breaking and entering into a school building. As was brought out in that case and is again recognized in the majority opinion in the instant case, the entry may have been for “the purpose of committing a misdemeanor or for an entirely innocent purpose.” Although the prosecution could'not in such manner create an inference of the accused’s felonious intent, the approach of the majority in effect would allow the prosecution to lift itself by its own bootstraps. The state can prove an intent to steal by showing that the accused participated in other occurrences similar in facts and close in time — even though he was never convicted of such prior acts.

A corollary may be drawn to the rule which permits an accused who has taken the stand in his own behalf to be impeached on cross-examination by proof of his having been convicted of previous crimes. The fact that he was previously accused or previously indicted would not be enough to qualify as a proper basis for impeachment. Schroeder v. State (1936), 222 Wis. 251, 259, 267 N. W. 899; Koch v. State (1906), 126 Wis. 470, 474, 106 N. W. 531; see also sec. 325.19, Stats.; 20 A. L. R. (2d) 1421, 1425, 1434. This concept was well expressed in United States v. Haynes (D. C. Pa. 1948), 81 Fed. Supp. 63, 68:

“Examination cannot be made as to whether a defendant has ever been arrested, incarcerated, indicted or engaged in the violation of a law. These facts are immaterial for even innocent persons are arrested and subject to indictment.”

The Georgia court of appeals recognized the same analogy in Waters v. State (1950), 82 Ga. App. 608, 609, 61 S. E. (2d) 794:

“Although a witness in a case may be discredited by showing his conviction of an offense involving moral turpitude, he may not be discredited by showing merely that he was charged and tried for such offense, since ‘until there is proof of conviction he is protected by the legal presumption of innocence.’ . . . The same rule applies where a defendant on trial for a criminal offense is sought to be connected with other criminal transactions.”

In the case at bar, the majority opinion, in rejecting the state’s argument that the carrying of the bag by a companion was equivalent to Reynolds’ possession of it, asserts the following:

“The danger inherent in such a theory is that this still does not tie appellant up with the Two Rivers burglary. It is reasonably conceivable that appellant joined up with Kennedy and/or Strong only subsequent to the assault on the Two Rivers school. Every doubt must be resolved in favor of the defendant.”

In my opinion, this would be true even if the proof showed that Reynolds was carrying the bag or had been at the Two Rivers school. Resolving every doubt in his favor, as the majority acknowledges must be done, it is not inconsistent with Reynolds’ innocence that he was at the Two Rivers school, was the owner of the bag or was in personal possession of the bag. Not having been convicted of the Two Rivers event, Reynolds must be presumed innocent as to it.

It would appear that the supreme court of Tennessee has adopted a rule comparable to that suggested in this concurrence. Wrather v. State (1943), 179 Tenn. 666, 169 S. W. (2d) 854. In a recent decision, the Georgia court of appeals, in Dandridge v. State (1964), 109 Ga. App. 33, 134 S. E. (2d) 814, said:

“Ordinarily, it is error to admit in evidence, over objection, an indictment against the defendant for another offense upon which there has been neither an acquittal nor a conviction, even though it might otherwise be admissible as an exception to the ‘other transactions’ rule.”

A case which squarely adopted the rule suggested in this concurring opinion is United States v. Haynes (D. C. Pa. 1948), 81 Fed. Supp. 63, 68, where the court said:

“In short, acts of misconduct not resulting in conviction are not the proper subjects of cross-examination to impeach a witness or to establish and show intent, motive, identity, scheme or plan.”

Conclusion.

Actual conviction should be required before the prosecution is permitted to offer proof of previous occurrences. I think our basic concept of presumed innocence makes the adoption of this rule a logical necessity. Innocent persons may become involved in a suspicious occurrence; innocent persons are even sometimes charged or indicted.

I am authorized to state that Mr. Justice Beilfuss and Mr. Justice Heffernan join in this concurring opinion.

Currie, C. J.

(concurring in part, dissenting in part). I concur in all of Mr. Justice Wilkie’s opinion except the last two paragraphs thereof. With respect to those two paragraphs I respectfully dissent. Where adult strangers, as here, come into a community and use burglarious tools to enter a school building, I believe the jury is entitled to draw an inference of intent to steal in the absence of any evidence tending to establish a different reason for the illegal entry.

       This court considers that the Sixth amendment, U. S. Const., is made applicable to the states by the due-process clause. State ex rel. Fredenberg v. Byrne (1963), 20 Wis. (2d) 504, 123 N. W. (2d) 305.

        Kopacka v. State (1964), 22 Wis. (2d) 457, 126 N. W. (2d) 78.

        State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372.

        Kopacka v. State, supra, footnote 2, at page 461.

        Kopacka v. State, supra, footnote 2; State v. Carli (1957), 2 Wis. (2d) 429, 86 N. W. (2d) 434, 87 N. W. (2d) 830, 357 U. S. 907, 78 Sup. Ct. 1151, 2 L. Ed. (2d) 1157; State v. Sawyer (1953), 263 Wis. 218, 56 N. W. (2d) 811, 346 U. S. 801, 74 Sup. Ct. 66, 98 L. Ed. 333.

       See Hansen v. State (1965), 26 Wis. (2d) 238, 131 N. W. (2d) 837.

         State v. Lombardi (1959), 8 Wis. (2d) 421, 438, 99 N. W. (2d) 829.

        Herde v. State (1941), 236 Wis. 408, 295 N. W. 684; Kluck v. State (1937), 223 Wis. 381, 269 N. W. 683; State v. Meating (1930), 202 Wis. 47, 231 N. W. 263.

       “In a class of cases where a specific intent is an essential element of the crime, other similar acts so closely connected with that charged as to tend directly to show the intent characterizing the latter may be proved for that purpose.” Baker v. State (1903), 120 Wis. 135, 145, 97 N. W. 566; see also 22A C. J. S., Criminal Law, p. 774, sec. 686.

        Supra, footnote 7.

        Supra, footnote 8.

        Supra, footnote 8.

        Supra, footnote 8.

       (1928), 195 Wis. 555, 218 N. W. 822.

       (1912), 149 Wis. 462, 136 N. W. 166.

       (1881), 53 Wis. 89, 9 N. W. 824.

        State v. Kennedy, supra, footnote 3, at page 613.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    State, Respondent, v. Camara, Appellant.

      September 10

    October 5, 1965.

      For the appellant there was a brief by Robert L. Habush, attorney, and James M. Shellow and Shellow & Shellow of counsel, all of Milwaukee, and oral argument by Mr. Habush.

    For the respondent the cause was argued by David E. Leichtfuss, first assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, William A. Plats, assistant attorney general, and Hugh R. O’Connell, district attorney.
   Beilfuss, J.

Appellant raises only two issues on this appeal: (1) Invalid denial of the preliminary examination, and (2) illegal search.

It is well established under Wisconsin law that the right to a preliminary examination is not a constitutional right, but a statutory right. State v. Strickland (1965), 27 Wis. (2d) 623, 633, 135 N. W. (2d) 295; State ex rel. Offerdahl v. State (1962), 17 Wis. (2d) 334, 336, 116 N. W. (2d) 809; Thies v. State (1922), 178 Wis. 98, 103, 189 N. W. 539.

Appellant contends, however, that he has met the requirements under the statute, and that denial of the preliminary examination was error. The statute is couched in language conveying discretion to the trial judge. Thus, the trial court is not obliged to remand upon defendant’s unsubstantiated allegations alone. But the appellant argues that permissive language is in fact mandatory when the statutes “. . . provide for the doing of acts or the exercise of power or authority by public officers, and private rights or the public interest require the doing of such acts or the exercise of such power or authority, ...” 3 Sutherland, Statutory Construction (3d ed.), p. 86, sec. 5808. Appellant cites Wauwatosa v. Milwaukee County (1963), 22 Wis. (2d) 184, 191, 125 N. W. (2d) 386, in support of this rule.

A close reading of the rule and the cases indicates that the rule is designed for application when the statute reads “may,” or contains some other permissive term. This statute reads “. . . the trial court may in its discretion. . . .” That the rule does not apply to a statute made expressly permissive by plain language appears in the Wauwatosa Case (p. 191): “Generally in construing statutes, ‘may’ is construed as permissive and ‘shall’ is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature.” Furthermore, the Wauwatosa Case must be distinguished upon the ground that it deals with administrative duties of municipal officers and not judicial discretion of a court. One can scarcely imagine language which more clearly spells out the intent of the legislature that the judge have discretion on the remand.

Since the remand is discretionary, we must determine whether or not that discretion was abused. While the exercise of discretion by the trial court must be grounded on some rational basis, the general rule is that an appellate court will not reverse the trial court unless an abuse of discretion is found. Estate of Korleski (1964), 22 Wis. (2d) 617, 622, 126 N. W. (2d) 492. The supreme court cannot substitute its discretion for that of the trial court. Estate of Korleski, supra; In re Johnson (1960), 9 Wis. (2d) 65, 75, 100 N. W. (2d) 383.

The trial court had before it the uncontradicted statement of the district attorney that the defendant had had considerable experience before his court, and other courts, which was unsupported by affidavits, the statement of defendant’s counsel that he needed the preliminary examination to adequately prepare for trial, and defendant’s handwritten affidavit of prejudice. Upon these facts the trial court concluded that defendant’s waiver of the preliminary examination was made intelligently. This decision, while not elaborately explained in the record, was not an abuse of discretion.

While a court may not take judicial notice of its records of convictions or appearances by the particular defendant before it for purposes of creating a “bad man” inference in determining guilt or innocence, the court may take judicial notice of its own records for purposes of creating an inference that the defendant is familiar with the procedure of that particular court. This inference bears on the issue of intelligent waiver. The trial court did not indicate in the record that it was taking judicial notice, but we conclude that that was the basis of the trial court’s ruling.

In Thies v. State, supra, at page 103, this court stated the historical purposes for a preliminary examination:

“The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.”

Nowhere in any decided case of which we are aware is discovery by the defendant given as a reason for the existence of the preliminary examination. Discovery, however, may be one of the valuable by-products of a preliminary examination from the defendant’s point of view. Thus, the trial court could have inferred that defendant sought the preliminary examination not to avail himself of one of its traditional purposes, but to obtain discovery from the state, and that the statement by counsel was a concession by defendant that probable cause to hold him for trial did exist. Defendant’s desire to prepare for trial indicates his belief that he would be bound over upon a finding of probable cause.

Finally, defendant’s affidavit of prejudice in proper form indicates that the defendant was quite familiar with criminal law and procedure. From this combination of factors the trial court could infer that defendant intelligently waived his preliminary examination, and that he did not seriously contend that there was a lack of probable cause.

Appellant contends that the search of his premises was illegal because not incidental to a valid arrest. For a search incidental to an arrest to be legal the arrest itself must be legal, and for the arrest to be legal probable cause for the arrest must exist. Ker v. California (1963), 374 U. S. 23, 34, 35, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726; Carroll v. United States (1925), 267 U. S. 132, 155, 156, 45 Sup. Ct. 280, 69 L. Ed. 543.

“Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States (1959), 361 U. S. 98, 102, 80 Sup. Ct. 168, 4 L. Ed. (2d) 134.
“Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.” Browne v. State (1964), 24 Wis. (2d) 491, 503, 129 N. W. (2d) 175, 131 N.W. (2d) 169.

The quantum of evidence required to establish probable cause is less than that which would justify conviction. United States v. Ventresca (1965), 380 U. S. 102, 107, 85 Sup. Ct. 1371, 14 L. Ed. (2d) 353; Draper v. United States (1959), 358 U. S. 307, 79 Sup. Ct. 329, 3 L. Ed. (2d) 327.

When Jagmin entered the rooming house, he possessed information that two men, one named Pablo Perez, were in the building and that they had some connection with the presence of the minors at the time and place in question. He also had information that the men had been to Chicago. When he met Perez his information was verified and increased. Perez acknowledged ownership of the car and told him that the other man, Camara, was upstairs cutting up dope. Armed with this information Jagmin went to Cam-ara’s room. Perez’s warning in Spanish, which the officer partially understood, added a significant factor. Then the officer observed through the crack in the door activity which was consistent with the informant’s statements. When Camara finally opened the door Jagmin identified himself and arrested the defendant.

Draper v. United States, supra; Ker v. California, supra; and Wong Sun v. United States (1963), 371 U. S. 471, 480, 83 Sup. Ct. 407, 9 L. Ed. (2d) 441, all hold that hearsay information may be used to establish probable cause. However, these cases also require that the hearsay be corroborated or substantiated in some way. In Ker and Draper the information from a reliable informant was corroborated by police observations. In Wong Sun the information was not from a reliable informant and was too vague to establish probable cause. Here the hearsay evidence was not from a known reliable informant; however, certain facets of the information possessed by the police officer at the time of arrest had been substantiated and corroborated by three other persons, and the remainder had been corroborated by the of-fleer’s own observations. Thus, where the police possess information which is corroborated by third persons and the observations of the police themselves, and the nature of that information is such that any reasonable police officer could believe that a felony is taking place, probable cause for arrest exists. This conclusion is bolstered by the fact that there was a probable risk that Camara would leave the premises and sell, or otherwise dispose of, the contraband if the police should leave to obtain a warrant. This additional factor may be considered in determining whether or not probable cause exists. Ker v. California, supra, page 40. This is not a case of mere suspicion, which is condemned, but one where the record reveals a totality of circumstances upon which a finding of probable cause may be grounded. The arrest being legal, there is nothing else on this record to taint the search incident to the arrest with unreasonableness.

Apart from justifying the search on the validity of the arrest to which it was incident, the search is clearly justified by defendant’s consent. In Barnes v. State (1964), 25 Wis. (2d) 116, 121, 130 N. W. (2d) 264, we said:

“A search and seizure are not in violation of constitutional rights if the person freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied; the state has the burden of proving by clear and positive evidence that such consent was given. [Cases cited.]” See Holt v. State (1962), 17 Wis. (2d) 468, 117 N. W. (2d) 626.

This case is similar to Barnes in the statements made to the police, but there is no hint of coercion as was there present. Jagmin testified that he asked the defendant “if he had any drugs in his room and he answered, ‘No, look around,’ and lifted the mattress and pulled things out of his pockets.” Similarly, Perez testified that the defendant denied possession of any narcotics and said, “ ‘If you think I got some narcotics in here come in and look for it.’ ” The defendant himself was the only witness who testified to no consent. This record clearly demonstrates actual consent and an absence of coercion.

There being both probable cause for the arrest and consent to the search, the search is not unreasonable.

By the Court. — Judgment and orders affirmed.

       “955.18 Preliminary examination; when a prerequisite to INFORMATION. . . .
      “(2) (a) Upon good cause shown the trial court may in its discretion remand the cause to the magistrate for a preliminary examination, upon motion made pursuant to s. 955.09. Good cause means:
      “1. Preliminary examination was waived; and

        “2. Defendant had not had advice of counsel prior to such waiver; and
      “3. Defendant denies that probable cause exists to hold him for trial; and
      “4. Defendant intends to plead not guilty.”


author: CuRrie, C. J.

text:
    Massey, Plaintiff in error, v. State, Defendant in error.

      September 10

    October 5, 1965.

      For the plaintiff in error there was a brief by Charlton, Yanisch, Binsak & Ritchay of Milwaukee, and oral argument by Earl A. Charlton.

    For the defendant in error the cause was argued by Robert E. Sutton, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
   CuRrie, C. J.

Defendant seeks reversal of the judgment of conviction on these two grounds:

(1) The appointment of the same counsel to represent both defendant and Sullivan because of claimed conflict of interests.

(2) The alleged illegal search of the automobile and seizure of the modified rifle.

Appointment of Same Counsel.

In support of the contention that it was prejudicial error for the trial court to have appointed Attorney McGrath to represent both Sullivan and defendant, defendant cites Glasser v. United States and People v. Bopp.

The Glasser Case involved a prosecution of several defendants for conspiracy to defraud the United States, and five were convicted, among them Glasser and Kretske. Glasser, Kretske, and another appealed their convictions to the circuit court of appeals, and the convictions were affirmed. The United States supreme court granted certiorari. The trial court appointed one Stewart, who had been retained as counsel for Glasser, as attorney for Kretske. Under the facts presented this was held to be error, and the court stated:

“In conspiracy cases, where the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant, it is especially important that he be given the benefit of the undivided assistance of his counsel without the court’s becoming a party to encumbering that assistance. Here the court was advised of the possibility that conflicting interests might arise which would diminish Stewart’s usefulness to Glasser. Nevertheless Stewart was appointed as Kretske’s counsel. Our examination of the record leads to the conclusion that Stewart’s representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser.”

In People v. Bopp the defendant Bopp was indicted for first-degree murder and one McErlane as accessory after the fact. When the case was called for trial McErlane was represented by one Williams as counsel but Bopp was without counsel or means to hire one. The trial court then appointed Williams as counsel for Bopp over the protest of Williams that the facts as told him by McErlane indicated that the latter’s interests were opposed to those of Bopp. Bopp was subsequently convicted but this conviction was reversed by the Illinois supreme court. One of the errors held to have occurred at the trial was the appointment of Williams to represent Bopp, and the court declared:

“The defenses of these two defendants were not the same. Each was an alibi, but each was dependent upon different testimony from the other. It might well be that testimony tending to exculpate one would tend to inculpate the other . . . . When the attorney stated to the court that his duty to his client by whom he was retained was inconsistent with the duty which the court sought to impose on him his statement should have been accepted. He should not have been required to disclose the facts showing the inconsistency.”

The facts in the instant case are clearly distinguishable from those in Glasser and Bopp. McGrath accepted without protest his appointment to represent both defendants and both defendants consented thereto. At the time Judge Steffes appointed McGrath, the judge stated to defendant and Sullivan, “He [McGrath] can tell you whether there is any conflict of interest requiring any further appointments.” There is nothing in the record which would indicate that there was any conflict of interests in McGrath’s representation of both. By defendant’s own testimony it is clear that he was the owner and possessor of the modified rifle, possession of which furnished the basis of his conviction. No doubt is created by this record with respect to defendant’s own guilt, but only a suspicion that he may have falsified the fact that Sullivan had no connection with the crime. This suspicion is partly due to McGrath’s statement to the court at time of sentencing defendant, “In going over the whole situation with Massey I spoke to him about the connection of Sullivan in the deal and he told me what he told the Court. At least he can stand and say that he did that good turn for his pal.” To have inculpated Sullivan would not have exculpated defendant.

In view of these facts we find no merit to defendant’s contention that he was denied effective representation by counsel because of McGrath’s also having been appointed to represent Sullivan.

Alleged Illegal Search and Seizure.

Here defendant pleaded guilty with assistance of counsel. The learned trial judge very carefully questioned defendant to be sure that the change of plea to guilty was voluntarily and freely made.

This court in Hawkins v. State, after thoroughly reviewing the authorities, held that a plea of guilty is properly deemed a waiver of a claim of unlawful search and seizure where the plea, as here, was voluntarily and understanding^ entered by one who had the assistance of counsel. That holding controls the result here.

A timely motion was made in the trial court to vacate the judgment of conviction and withdraw the plea of guilty. The motion was denied. We deem it significant that this denial has not been challenged by appeal or writ of error.

By the Court. — Judgment affirmed.

       (1942), 315 U. S. 60, 62 Sup. Ct. 457, 86 L. Ed. 680.

       (1917), 279 Ill. 184, 116 N. E. 679.

       315 U. S., page 76.

       (1917), 279 Ill. 184, 116 N. E. 679.

       279 Ill. 184, 191, 192.

       (1965), 26 Wis. (2d) 443, 132 N. W. (2d) 545.


author: Fairchild, J.

text:
    Brown, Plaintiff in error, v. State, Defendant in error.

      September 10

    October 5, 1965.

      For the plaintiff in error there was a brief by Herbert L. Usow, attorney, and Robert L. Sanderson of counsel, both of Milwaukee, and oral argument by Mr. Usow.

    For the defendant in error the cause was argued by David E. Leichtfuss, first assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O’Connell, district attorney.
   Fairchild, J.

Plaintiff in error seeks a new trial in the interest of justice under sec. 251.09, Stats. He contends that (1) there is an inconsistency between eyewitnesses’ testimony concerning the physical appearance of the robber that gathered the money and their identification of Brown as that robber; (2) prior to their identifications of Brown in a lineup after his arrest and again at the trial, witnesses were shown pictures under such circumstances as to suggest that this identification was induced by the pictures, and (3) the state failed to produce as witnesses all those who had an opportunity to observe the robber who collected the money. These contentions go to the weight and credibility of the witnesses’ identification of Brown as the robber.

Plaintiff in error also contends that the trial judge was not convinced beyond a reasonable doubt of Brown’s guilt as evidenced by discussion concerning a lie-detector test after the judgment was announced. In this respect, plaintiff in error contends that this case is ruled by Meyer v. State.

1. Inconsistency between testimony and identification. On cross-examination each witness who identified Brown as the robber testified that the person who gathered the money was “clean-shaven” or “smooth-shaven.” The record shows that at the trial Brown had a tuft of hair beneath his chin and a thin mustache and that in this respect his face was the same on July 17th, the day of his arrest, and July 15th, the day the robbery occurred. Other testimony indicated that Brown, aged twenty-seven at the time of the robbery, had smooth and beardless cheeks, had been shaved once when he was in the army several years ago, but otherwise he had never shaved. While on the witness stand several witnesses indicated that they were able to detect the facial hair just referred to, but each witness who was present at the robbery positively identified Brown as the man who gathered the money in the course of the robbery.

The record contains no pictures of Brown but we have the benefit of remarks by the trial judge preliminary to the pronouncement of the finding of guilt and further testimony of witnesses concerning Brown’s face. The trial judge stated that he considered the defendant’s facial hair was

“. . . of no compelling consequence. His chin whisker is so inconspicuous as reflected against the color of his face [defendant is a negro] as to be not easily not [sic] observable. His mustache certainly is not of a stand-out variety that one can say it is a mustache. It blends in very completely and perfectly with his complexion. His skin is of the very smooth type.”

One of the witnesses testified that she considered Brown smooth-shaven despite the tuft of hair beneath his chin and his thin mustache.

The trial judge was in a position to evaluate the significance of any inconsistency between the witnesses’ descriptions of the robber as smooth-shaven and their positive identification of Brown. He considered the apparent inconsistency to be of no consequence. We cannot say that it renders the witnesses’ identification of Brown, as a matter of law, incredible or insufficient to convince beyond a reasonable doubt.

2. Alleged use of pictures to obtain identification. Plaintiff in error contends that pictures were shown witnesses just before they identified Brown as the robber in lineups after his arrest. He suggests that the witnesses, having just seen Brown’s picture, were led by the power of suggestion to identify Brown as the robber when in reality they were only identifying him as the man whose picture they had just seen.

Four of the five witnesses who identified Brown at the trial testified on cross-examination that they had picked Brown out of one or two lineups on July 17th or 18th. Mary Ann Wittek, a bank teller, picked Brown’s picture out of a group of five or six pictures sometime between the robbery and July 17th, when she picked him out of two lineups. She also saw a picture of Brown before the trial. Beverly Dvorak, also a bank teller, saw Brown’s picture and identified him as the person who gathered the money, picked him out of two lineups the next day, and saw two pictures of him just before the trial. Carl Reichert, a bank customer, testified that he had seen hundreds of pictures on the afternoon of the robbery and had selected one as the man who gathered the money. He was not able to state whether or not this was a picture of Brown. He picked Brown out of a lineup on July 18th, and was shown a picture of Brown before the trial. Wilber Evers, bank vice-president, said he did not recall being shown a picture of Brown before he picked Brown out of a lineup.

This record does not support the claim that the witnesses were shown photographs of Brown in such a manner “that the witnesses were given the impression that this was the man who had committed the holdup even though they had not yet identified him in the lineup.” In any event, it would be within the province of the trier of the fact to determine what effect the display of a defendant’s photograph to witnesses prior to their identification of him as on the weight and credibility of their subsequent identification. We find nothing in the testimony with respect to pictures of Brown that would render the witnesses’ positive identification incredible as a matter of law, or insufficient to convince beyond a reasonable doubt.

3. Failure to call all available eyewitnesses. Plaintiff in error pointed out that there were a number of bank employees and customers present at the robbery who were not called by the state. The robber who gathered the money passed very close to six employees who were not called, three tellers in particular. The state does not have the burden to produce every possible witness where, as in this case, there were numerous witnesses. Five witnesses positively identified Brown as the man that gathered the money. The failure to call the other witnesses was pointed out by defense counsel in argument to the trial court. Their absence did not raise a reasonable doubt in the mind of the trial court, and the fact that they were not called does not, as a matter of law, render the testimony of the others insufficient to sustain the finding of guilt.

4. Discussion concerning a lie-detector test. Plaintiff in error contends that certain discussion of a lie-detector test, after the finding of guilt, but before sentencing, makes this case parallel to Meyer v. State where we exercised our discretionary power to reverse and grant a new trial.

In Meyer the trial judge, after finding Meyer guilty, offered him the opportunity to take a lie-detector test. “The court advised Mr. Meyer that if he failed to pass the lie-detector test, he would be sentenced to the maximum term of thirty years. On the other hand, if he passed the test, the court stated it would ‘take it into consideration.’ ” We said that by this statement “the trial judge made ambiguous whether guilt had been established beyond a reasonable doubt.”

We do not find a similar ambiguity in the record now before us.

In this case Judge Steffes briefly reviewed the evidence after argument by counsel and stated that he considered “without any doubt in my mind that these witnesses have identified clearly and truthfully this defendant.” He then pronounced his finding that Brown was guilty.

The later colloquy concerning a lie-detector test was not initiated by the judge. After the finding of guilt, Brown emphatically stated that he was innocent. Defense counsel told the judge he had made a mistake “and we still believe that this defendant is innocent.” In response, the assistant district attorney stated that he would like to advise the court that Brown had submitted to a polygraph or lie-detector test. The further colloquy among the court, the assistant district attorney (Mr. O’Connell), and defense counsel (Mr. Mc-Dermott and Mr. McEvoy) was as follows:

“Mr. McDermott: That isn’t proper. I couldn’t answer the questions on the polygraph test myself.
“Mr. O’Connell: It doesn’t go to the question of guilt. That has already been determined.
“The Court: I was going to suggest if this defendant wants the opportunity of challenging the conclusions that I have arrived at by any procedures that he has in mind, that may be suggested with respect to a scientific apparatus, which is the polygraph, I have no objection but if that has already been proposed—
“Mr. O’Connell: Yes, it was in the hands of a very skillful operator and it showed that the defendant was deceptive in his responses to every question in the testimony and there is no question in my mind whatever.
“I will ask that this defendant be sentenced to the maximum. This is a daring daylight armed robbery in the City of Milwaukee and punishment should be meted out accordingly and serve as a warning to all others who might subsequently attempt to do the same thing.
“The Court: Bear in mind, Gentlemen, as far as I am concerned I am not considering any information which is relayed with respect to any polygraph results. I was about, as I have done on rare occasions where there has been a violent reaction and a strong protest against a finding of guilt and it was a matter of veracity between the parties, particularly in some sex cases where there was the word of one against the other, I was going to extend an opportunity to this defendant, but it won’t be necessary under the circumstances apparently now. I am correct in that, Gentlemen?
“Mr. McEvoy: I would like to say that it was the defendant who himself requested that this polygraph test be taken and I think he certainly believed at the time that he was innocent and that it would be so established.
“The Court knows that these machines are not infallible and that they are not admissible in evidence.
“Mr. McDermott: If your Honor would read some of those questions, they are multiple in form, I don’t think that Counsel could himself answer those questions without reacting in some way.
“The Court: I am not going to try the polygraph. I have tried the defendant without the aid of any other device and I realize that polygraph results are not admissible in evidence and I do not intend to resort to it now. I am excluding from my mind any impression with respect to that because it is not admissible, I simply was going to state that in accordance with precedent which I have exercised on rare occasions if the defendant himself wanted it I would not foreclose the opportunity.
“Mr. O’Connell: Let the record show, your Honor that I did not advert to that until after a prior finding of guilty.
“The Court: I understand.”

We do not find in the foregoing discussion the implication that Judge Steffes may have had such doubt of Brown’s guilt that he was seeking confirmation or refutation of his finding by the results of a lie-detector test.

Viewing the record as a whole and considering all the contentions advanced it does not appear probable that justice has miscarried, and we decline to exercise our discretionary power of reversal under sec. 251.09, Stats.

By the Court. — Judgment affirmed.

       (1964), 25 Wis. (2d) 418, 130 N. W. (2d) 848.

         Dillon v. State (1909), 137 Wis. 655, 119 N. W. 352; Farino v. State (1931), 203 Wis. 374, 234 N. W. 366. This court said in Dillon v. State, at page 659, quoted in Farino v. State, at page 382: “. . . it would seem to be proceeding beyond the bounds of reason or of justice to require the state in all instances to call all eyewitnesses to the commission of an alleged crime. The weight of authority in this country is certainly against the contention of the defendant. . .

        Supra, footnote 1.


author: Hallows, J.

text:
    Will of Cooper: Cooper, Objector and Appellant, v. Zold, Proponent and Respondent.

      September 13

    October 5, 1965.

      For the appellant there was a brief by Melli, Smith & Shiels of Madison, and oral argument by Robert W. Smith.

    For the respondent there was a brief - by La France, Thompson, Greenquist, Evans & Dye, attorneys, and Kenneth L. Greenquist and Adrian P. Schoone of counsel, all of Racine, and oral argument by Kenneth L. Greenquist.

   Hallows, J.

The main issue is whether the court’s failure to find undue influence on the part of the primary beneficiary was contrary to the great weight and clear preponderance of the credible evidence. A corollary issue is whether the trial court failed to recognize the inference of undue influence which the appellant claims was established as a matter of law by undisputed evidence. There are minor subsidiary issues which will be stated later.

The parties do not disagree on the basic law governing proof of undue influence or the scope of the appellate power in such cases. Undue influence, of course, as we have often said, must be proved by clear, satisfactory, and convincing evidence and a finding either way will not be upset on appeal unless it is against the great weight and clear preponderance of the evidence. It is also recognized the nature of undue influence is such that it usually rests either solely or to a large extent upon circumstantial evidence. For an explanation and discussion of these applicable rules, see Will of Freitag (1960), 9 Wis. (2d) 315, 101 N. W. (2d) 108; Kuehn v. Kuehn (1960), 11 Wis. (2d) 15, 104 N. W. (2d) 138; Estate of Perssion (1963), 20 Wis. (2d) 537, 123 N. W. (2d) 465.

Appellant contends undue influence was adequately proved under two theories of proof, i. e., the four classical elements of opportunity to influence, disposition to influence, susceptibility, and coveted result, Will of Freitag, supra, and the confidential relationship between the testator and the beneficiary coupled with “suspicious circumstances,” Will of Faulks (1945), 246 Wis. 319, 17 N. W. (2d) 423. As to the first method, appellant contends the findings of the trial court are contrary to the great weight and clear preponderance of the evidence and as to the second method, the court failed to make findings in accordance with the great weight and clear preponderance of the credible evidence.

The appellant’s brief contains 28 pages of facts. We will only summarize the more salient points of the testimony which we reviewed as a whole to determine what is the great weight and clear preponderance of the evidence. In 1949 Cooper, who lived in Racine with his wife and son, was unemployed and with the financial help of his wife opened up a grocery store in a building which she owned with other persons. The appellant was married in 1950 and lived in the Racine area until his mother’s death in 1956. There was a cordial relationship between the two Cooper families. Upon his mother’s death, at the request of Cooper the appellant moved into his father’s home under a sharing-of-expense arrangement, an arrangement which lasted some six years. There is testimony this arrangement, while workable, was not entirely satisfactory and Cooper and his daughter-in-law were not on the best of terms. There is also testimony that Cooper was stubborn, self-willed, and not easily influenced and was also domineering and demanding. Following Mrs. Cooper’s death the testator’s health and personality suffered. He was bitter about his wife’s death and took less interest in the store.

In 1962 the appellant’s wife became pregnant and her ill-health was of concern; so much so, her mother and stepfather came from Arizona to Racine to help her with her household duties. After the birth of a child in early December, the appellant made plans to leave his father’s home because it was too crowded for his family and because the doctor had suggested a warmer climate for his wife’s health. About this time Cooper’s health suffered a setback and he was hospitalized with leukemia. The appellant understood the nature of this disease. Cooper’s health improved after some transfusions and by the middle of January he was back home getting ready to reopen his store. About this time he became repetitious and vague about many things and rambled on about the past and sometimes forgot events which had just occurred.

On January 18th the appellant and his family left with his in-laws for Arizona, there to stay. The parting with Cooper was cordial. Cooper planned to rent the house and to move and live alone in the store building and had applied for social security. Birthday cards were exchanged between the appellant and his father in February. In early April Cooper reopened the store and rented his house. However, his health again deteriorated and toward the end of April he closed his store. From then on his condition grew worse and he was hospitalized on May 6th and remained there until his death on May 23d. The appellant first learned about May 10th or 12th that his father had been hospitalized. At the time the appellant was staying with his in-laws in Arizona and was planning to go to California to secure a job. Mrs. Zold and Mrs. Kuhnwald attempted to reach the appellant by phone and talked to his mother-in-law. These calls were made at the request of Cooper. Although requested to return the calls, the appellant did not and did not otherwise communicate with his. father. On May 22d while in California, he received a telephone call from Mrs. Zold advising him his father was seriously ill and on the following day that his father had died.

Mrs. Zold, aged forty-seven, lived across from the Cooper store, was married and the mother of two children. Her husband was an unemployed invalid for some thirteen years, and from December, 1962, was receiving social security. Mrs. Zold worked all her married life at various jobs, the latter thirteen years as a cleaning lady for various doctors and lawyers. Mrs. Zold knew Cooper casually in 1949, became a customer of his store and did cleaning on two or three occasions at the Cooper residence prior to Mrs. Cooper’s death. After Mrs. Cooper’s death Mrs. Zold had contacts with Cooper such as visiting at the Cooper home, having Cooper go with her family on a vacation, and stopping at the store. During the two years prior to Cooper’s death Mrs. Zold had occasion to make bank deposits for him, and spent more time with him at the store in a social manner. Commencing with the testator’s hospitalization in December, 1962, Mrs. Zold saw testator often and visited'him once or twice a day at the hospital, waited on him, ran errands for him, and brought him home from the hospital. She continued to see the testator at least once a day after his return home and generally took care of him. She entered the home without knocking, took him to the doctor for a blood test on a weekly basis, and would get his prescriptions filled.

At the end of April Mrs. Zold took testator daily to the hospital to receive X-ray therapy and about this time contacted George Simanek, an attorney, to make a will for the testator. Mr. Simanek had previously represented Mrs. Zold and she was employed by him as a cleaning lady. Mrs. Zold contacted Mr. Simanek several times prior to the will’s execution on May 10th. On May 6th she telephoned the attorney and gave him the instructions for drawing the will. On this morning Mrs. Zold had gone to the store about 9 o’clock, and found Mr. Cooper unable to go for a therapy treatment. She called Dr. Dorman who came and after an examination advised that Cooper be taken to the hospital. Cooper did not desire to go and stated he knew he was going to die. Somehow she took Cooper to the city hall for blood tests and back to the store. The testimony shows Mrs. Zold then withdrew $3,500 from the testator’s savings account, of which the testator gave her $1,000 to pay bills. After this transaction, Mrs. Zold took testator to the hospital. There is some vagueness and inconsistencies in the record concerning this money.

On May 10th the will was executed. Mr. Simanek went over the will with Cooper at the hospital and explained it. In response to the attorney’s question whether the will was the way Cooper wanted it, Cooper stated he should not give his son anything because they never saw eye-to-eye and especially he disagreed with his daughter-in-law. The attorney volunteered to redraft the will but Cooper said the will as drawn was the way he wanted it. A power of attorney prepared by the attorney was also explained to Cooper. It was explained the document authorized Mrs. Zold to go to the bank and withdraw funds to pay bills and to generally manage his affairs. The documents were then properly executed. The testator told the attorney to keep the will and power of attorney until he wanted them. There is no question on this appeal that at the time the will was executed the testator was rational, sane, and in full possession of his mental faculties.

There was testimony from Dr. Dorman who treated Cooper that on April 26, 1963, Cooper told him his son and family had left him when he needed them most and blamed his son’s wife. Cooper further stated he was going to disinherit his son and leave his money to another person who helped in the store. The doctor further testified Cooper up to May 20th was domineering and stubborn and had ordered Mrs. Zold around. Rev. Nathan Bartel who cálled on Cooper while he was hospitalized testified that about' a week before Cooper’s death he mentioned he wished his son would visit him and that his son had left him in the lurch when he needed him most.

The trial court held that Mrs. Zold had ample opportunity to exercise undue influence upon Cooper to procure for herself an improper favor if she was so disposed. Thus we do not need to spend any time on this element of proof. The appellant complains the trial court did not properly analyze the element of coveted result because the trial court thought the unnaturalness of the will was explained. A will must not only on its face make an unnatural disposition, but the disposition must also be in fact unnatural to satisfy the test. The concept of coveted result includes obtaining for oneself or another a benefit such person would normally not receive and its reception is unjust to someone else. Evidence may make what appears to be an unnatural or unjust will a natural and plausible one. The evidence is sufficient to show that Cooper intended to disinherit his son for reasons which to him seemed justified, primarily because his son had left him during his terminal illness when he needed him most. There is no substantial evidence that Mrs. Zold turned Cooper away from his son and daughter-in-law. Nor is it unusual for a person in terminal illness to be generous to people who are kind and comforting to him. It was not unreasonable to make Mrs. Zold a beneficiary in generous repayment for her solicitude, comfort, and services when Cooper needed assistance in his personal and business affairs, services which appellant might have performed if he was so disposed.

The appellant draws the inference from the testimony that Mrs. Zold was a grasping woman disposed to exercise her influence for her own gain. The trial court viewed the evidence differently and drew the conclusion Mrs. Zold’s actions were one of co-operation and friendliness and in response to the demands of Cooper. A friendship had grown up between Cooper and Mrs. Zold to the point where the trial court thought Cooper could demand and expect help and comfort from Mrs. Zold.

The question of the willingness to pursue and the capacity to recognize and resist such pursuit are difficult questions because their determination lies in the realm of inferences. The trier of the facts must draw the inferences which to him must be required to be drawn by evidence which he considers clear, satisfactory, and convincing. The evidence without question shows Mrs. Zold influenced Cooper in some respects, but all people are motivated by the influence of others. The test of when influence becomes undue is when it becomes so strong it overpowers and compels the exercise of the will of the person subjected to it. The result accomplished must be the purpose of the one using the influence rather than the purpose of the donor, and when influence produces a result which is of a benefit to the person using the influence, either directly to himself or indirectly for the benefit of another or to the injustice of another, the influence is characterized as undue. Conversely, when the result is produced by influencing a freely exercised and competent judgment, it is not undue influence. Estate of Perssion (1963), 20 Wis. (2d) 537, 123 N. W. (2d) 465. While we might have difficulty in drawing the inference of the non-disposition of Mrs. Zold as strongly as the trial court did, we would nevertheless be faced with the problem of testator’s ability to recognize and resist the undue influence.

The trial court found Cooper was not susceptible to undue influence by Mrs. Zold. It chose to believe the testimony that Cooper was strong-willed and not easily influenced and such characteristics persisted until a few days before his death. The sharp point of this element is whether Cooper’s strong will and domineering characteristics so deteriorated after his wife’s death and under the influence of Mrs. Zold that his will and judgment became susceptible to overpowering influence of Mrs. Zold. The appellant points out Mrs. Zold was able to convince Cooper to do many things she thought he ought to do. The court chose to believe the testimony of the doctor which was specific on the point that Cooper was strong-willed and not easily influenced by Mrs. Zold up to a few days before his death.

Considering the evidence as a whole and including the disturbing element of Mrs. Zold’s relation with Cooper in respect to the withdrawing of money from the bank and its unexplained disposition, we must nevertheless conclude the appellant’s proof was not so clear, satisfactory, and convincing that in rejecting it the trial court did not make a finding against the great weight and clear preponderance of the evidence.

The appellant contends the trial court failed to recognize the inference of undue influence which arose because of the confidential relationship which existed between Mrs. Zold and Cooper and of her activities in procuring the drafting of the will of which she became a principal beneficiary. As we read the opinion of the trial court it was cognizant of the rule laid down in the Will of Faulks, supra, even to the point of paraphrasing part of its language. We agree with the appellant that upon the facts of this case an inference of undue influence arose which required rebutting evidence which at least balanced that of the appellant. But the basic question which must be determined from the evidence submitted is always whether “the free agency of the testator has been destroyed.” Will of Faulks, supra, page 359.

Because the inference of undue influence which arises from a confidential relationship in which the person occupying such relationship toward the testator engages in procuring the drafting of the will and takes a benefit thereunder is the type of inference which is sufficient to sustain a finding of undue influence, the opposition has the burden of going forward with the evidence. Estate of Ford (1963), 19 Wis, (2d) 436, 446, footnote 1, 120 N. W. (2d) 647. However, if rebutting testimony is introduced the inference still persists but a trier of the facts is not required to accept the inference but may reject it and accept the rebutting evidence. This is well explained in the Estate of Barnes (1961), 14 Wis. (2d) 643, 112 N. W. (2d) 142; Schlichting v. Schlichting (1961), 15 Wis. (2d) 147, 112 N. W. (2d) 149; Estate of Spenner (1962), 17 Wis. (2d) 645, 117 N. W. (2d) 641. We do not agree with the appellant the inference of undue influence was not rebutted and, therefore, the trial court was required to accept the inference of undue influence as a matter of law. One need not contradict the evidentiary facts giving rise to the inference but may introduce such facts as would permit the rejection of the inference of undue influence. We conclude that while the inference of undue influence persisted and could have been accepted by the court, the counter evidence was sufficient to justify the court in not accepting it.

In the order admitting the will to probate, costs were awarded in favor of the proponents and against the appellant-objector in the sum of $3,163.48. The attorneys for Mrs. Zold considered this an obvious error and taxed the costs including the attorney’s fees against the estate under sec. 324,13, Stats. This section provides a court may in a will contest allow the proponent a reasonable attorney’s fee to be paid out of the estate. For clarification of the record, the order should be modified so as to allow costs and attorney’s fees to be taxed against the estate and not the appellant in the amount stated.

The appellant argues the trial court erroneously substituted executors and ordered the issuance of letters to the First National Bank & Trust Company of Racine. The order recites Mrs. Zold declined to act as executrix under the will. This objection was not raised in the trial court. Dehors the record the appellant’s brief states no written declination or petition was filed and the respondent’s brief replies the record does not contain the declination or petition because such matter was not a part of the issues in the will contest. We must agree with the respondent that the matter is not properly before us on this appeal.

By the Court. — The order appealed from should be modified in accordance with this opinion and, as so modified, is affirmed; the respondents to have costs on appeal.


author: Gordon, J.

text:
    Estate of Staniszewski: Scarcia, Appellant, v. Stadelman, Executor, Respondent.

      September 13

    October 5, 1965.

      For the appellant there was a brief and oral argument by Robert D. Haase of Marinette.
    For the respondent there was a brief by E. H. Herbert of Coleman, and Adolph P. Lehner and Lehner, Lehner & Behling of Oconto Falls, and oral argument by Howard N. Lehner.

   Gordon, J.

Denial of an Adjournment.

One of the grounds advanced by the appellant in this court to support her demand for a new trial is the fact that the trial court refused to grant her request for a continuance. That request had been based upon the fact that the appellant’s counsel had not been retained until that very morning. Counsel sought additional time to familiarize himself with the case and to prepare for the hearing. This is the type of request with which á judge is ordinarily sympathetic.

However, in the instant case, as Judge White carefully pointed out, such counsel was at least the sixth in a “long list of attorneys who have at one time or another represented the claimant.” The court observed that there had already been many previous continuances. Judge White also noted that the estate had incurred substantial expense in connection with having its expert witness present and ready to testify.

In our opinion, under these circumstances it was an entirely proper exercise of the trial court’s discretion to deny a last-moment request for an adjournment. Schwarz v. Strache (1957), 275 Wis. 42, 80 N. W. (2d) 797.

Receipt of Exhibits in Evidence.

The request for a new trial upon this appeal is also bottomed on the appellant’s contention that various documents were received into evidence without adequate identification or foundation. Particularly, the appellant objects to the admission of Exhibit 13, which is an instrument apparently signed by Joseph and Frances Staniszewski. Exhibit 13 was turned over by Mrs. Scarcia’s then attorneys, Lontkowski and Lontkowski, for the use of Mr. Bieniek, whose deposition contained his expert opinion that the paper used was in fact not manufactured until five years after its purported date of execution.

The following portion of the record persuades us that there was no error in connection with the court’s determination to admit Exhibit 13 into evidence:

“Mr. Herbert: Yes. I ask that this be admitted in evidence, Exhibit #13, which is Exhibit #1 under the deposition, for the purpose of having that before the handwriting expert for comparison of signatures and to add to the testimony regarding the paper, which shows the testimony of Edwin A. Bieniek, the chemist of this American Writing Paper Company who manufactured the paper upon which that message is written.
“The Court: Now, do I understand that you are offering as Exhibit #13 the entire deposition, including the commission to the commissioner, the written interrogatories and the responses and the various exhibits, plus the exhibit on top of the entire file which is labeled Exhibit #1?
“Mr. Herbert: Yes, which is part of the deposition.
“The Court: You are offering the entire deposition, including all exhibits, under the new label of Exhibit #13?
“Mr. Herbert: That’s right.
“The Court: Mr. Haase is just looking at it now and I will not rule on your motion until he has had a chance to see it.
“Mr. Haase: I have no objection.
“Mr. Herbert: I offer it in evidence.
“The Court: Received.”

Certain other exhibits were received into evidence over objection, and it is contended that these writings were not sufficiently identified or authenticated to warrant their admission. These documents were utilized for the limited purpose of supplying the handwriting expert with examples of writings which purported to contain the signature of Frances Staniszewski.

Insofar as the various documents supplied Mr. Godown with materials to assist him in formulating his conclusions as to the authenticity of the signatures appearing on the $10,000 note, the failure of the respondent to have provided better authentication would affect the weight to be given to the expert’s opinion. Since the documents were utilized for comparison purposes by the handwriting expert, it was not prejudicial error to have received them into evidence, and we are satisfied that the trial court did not abuse its discretion in permitting them to be so received.

In a sense, the admission into evidence of these documents was comparable to the admission of hearsay evidence which is not offered to establish the truth of the matter asserted. See Auseth v. Farmers Mut. Automobile Ins. Co. (1959), 8 Wis. (2d) 627, 630, 99 N. W. (2d) 700. The trial court in the instant case was persuaded that the documents were of sufficient competence to provide the examiner of questioned documents with some examples of the decedent’s purported signature. The documents were not received as direct proof of thé validity or lack of validity of Mrs. Scarcia’s claim.

TheTestimony of Phyllis Krip.

Phyllis Krip, a niece of the claimant, testified that she observed Mrs. Staniszewski re-sign the note by tracing over her original signature. This occurred in 1957 at Pound, Wisconsin. The trial court made an express conclusion that “the witness Phyllis Krip testified falsely as to material facts in issue.”

The appellant contends that under Estate of Hatten (1940), 233 Wis. 199, 288 N. W. 278, the positive testimony of Phyllis Krip cannot be assailed by the mere theory of an expert witness.

The trial court observed the demeanor of Phyllis Krip on the witness stand and was mindful of her relationship to the claimant. Under all the circumstances of this case, we are satisfied that it was within the proper province of the trier of fact to determine the weight to be given to the testimony of Phyllis Krip. Even though her testimony was not impeached in a direct manner, such fact would not require that the trial court accept it. In Lazarus v. American Motors Corp. (1963), 21 Wis. (2d) 76, 84, 123 N. W. (2d) 548, this court said: “A court is not obliged to adopt even uncontra-dicted testimony if such testimony is inherently improbable.”

Without reference to the doubt cast on the validity of Phyllis Krip’s testimony by the handwriting expert, the court was entitled upon this record to disbelieve her testimony. In view of such fact, the court was not foreclosed from giving credence to the opinion advanced by the expert witness.

Conclusion.

Our review of the record persuades us that a full and fair hearing was afforded to Mrs. Scarcia; Judge White’s conclusion that the note offered by Mrs. Scarcia was “a forged and spurious document in its entirety” is fully supported by the record.

By the Court. — Judgment and order affirmed.


author: Wilkie, J.

text:
    Village of West Milwaukee, Respondent, v. Klix, Appellant.

      September 13

    October 5, 1965.

      For the appellant there was a brief and oral argument by Ben Lewis of Milwaukee.
    For the respondent there was a brief by Allen J. Busby and Quarles, Herriott & Clemons, attorneys, and L. C. Hammond, Jr., and John S. Holbrook, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Hammond.

   Wilkie, J.

The sole issue presented on this appeal is whether appellant fulfilled the bond requirements of sec. 66.12 (2), Stats. This section provides in part:

“If the appeal is taken by the defendant he shall, as a part thereof, execute a bond to the city or village with surety, to be approved by the justice or judge, conditioned that if judgment be affirmed in whole or in part he will pay the same and all costs and damages awarded against him on such appeal. In case such judgment shall be affirmed in whole or in part execution may issue against both defendant and his surety.”

Respondent contends that the circuit court did not have jurisdiction of the appeal because the bond was deficient in two respects: (1) It was without surety and (2) it was not indefinite in amount. It is true that the statute expressly requires surety. But the purpose of the statute is to assure that the fine is paid and that the village is indemnified for costs and damages should the judgment be affirmed. But the fine had already been paid and it is difficult to perceive of a more ironclad guarantee for the recovery of costs than cold hard cash. The statute does not specifically call for a bond which is indefinite in amount. There is nothing in the record indicating that the village thought the amount was inadequate. If that were the position of the village then it could have made that claim in connection with a motion to dismiss brought pursuant to sec. 269.51 (1), Stats., and pursuant to that section the circuit court could have ordered a. change in the amount of the bond.

Under the circumstances there was substantial compliance with the statute, and the circuit court had jurisdiction of the appeal.

By the Court.- — Order reversed.

         Nelson v. Eau Claire (1921), 175 Wis. 387, 185 N. W. 168; Drinkwine v. Eau Claire (1892), 83 Wis. 428, 53 N. W. 673.

       Sec. 269.51 (1), Stats. “. . . If it shall appear upon the hearing of such motion that such appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.”

        Drinkwine v. Eau Claire, supra, footnote 1, at page 429.


author: Heffernan, J.

text:
    Gauthier, Plaintiff in error, v. State, Defendant in error.

      September 10

    October 5, 1965.

      For the plaintiff in error there was a brief and oral argument by Rodney Lee Young of Ladysmith.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Plats, assistant attorney general.

       Motion for rehearing denied, without costs, on November 4, 1965.

   Heffernan, J.

The defendant’s principal allegation of error is that there was insufficient credible evidence to support the court’s finding that he was guilty of the crime charged. He also asks that in the interest of justice the judgment be set aside and a new trial ordered.

The burden of proof upon the state is the same whether the case is tried before a jury or before a court. That burden is to prove the .defendant guilty beyond a reasonable doubt. The test applied upon appeal to this court is whether the “evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.”

As the burden of proof is the same whether the trial is to the court or to a jury, the test to be applied to determine the sufficiency of the evidence is the same. State v. Waters, supra.

When testing the sufficiency of the evidence, this court is not required to be convinced of the guilt of the defendant beyond a reasonable doubt, but only that the jury or the court could find the defendant guilty beyond a reasonable doubt. State v. Stevens, supra.

The credibility of the witnesses is properly the function of the jury or the trier of fact, in this case the trial judge. It is only when the evidence that the trier of fact has relied upon is inherently or patently incredible that the appellate court will substitute its judgment for that of the fact finder, who has the great advantage of being present at the trial.

Defendant’s main allegation on this appeal is that the testimony of the complaining witness, a seventeen-year-old girl, is so lacking in detail as to be unconvincing and hence incredible. The acts of intercourse complained about occurred in 1961 when the complainant was fourteen years old. The trial, however, was not held until 1964. The delay was occasioned mainly by the defendant’s flight to avoid prosecution. Considering the lapse of time, it is not surprising that some of the details escaped the memory of this girl. However, each of the three incidents was described with sufficient particularity to prove that penetration had occurred. It is not necessary to allege and prove every detail leading up to the seduction and rape. In each instance the child either described the act of penetration or referred to it as “intercourse.” Our court has previously held that, “When one of understanding testifies to a completed act of sexual intercourse it is sufficient proof of penetration.” Athos v. State (1929), 199 Wis. 228, 230, 225 N. W. 692; Cleaveland v. State (1933), 211 Wis. 565, 570, 248 N. W. 408, 410.

The record shows that the complaining witness, in response to a question by the trial judge, correctly defined “intercourse.” It cannot be said that she used this term without knowing its meaning. Her testimony showing her understanding of the meaning of the word by which she described the conduct is sufficient proof of penetration.

The fact that the complainant was unable to describe relatively minor details surrounding each occurrence does, of course, reflect to a small degree upon her credibility, but, as is well established in this state, the credibility of witnesses and the weight to be given to their competent testimony is for the trial court to determine. Birmingham v. State (1938), 228 Wis. 448, 451, 279 N. W. 15.

The victim in this case first accused her father of being the offending person, but later she changed her story and accused her uncle, the defendant. A record of prior inconsistent statements does reflect upon the credibility of the witness. Here, however, her conduct was explained by the testimony that the defendant threatened to shoot her if she “didn’t go along with him” (in the accusation of the father). In any event, the utterance of inconsistent statements is again a matter going to credibility, which is a matter to be determined by the jury or the finder of fact. State v. Fries (1945), 246 Wis. 521, 525, 17 N. W. (2d) 578.

The complainant, after withdrawing the accusation against her father, remained silent for several weeks before accusing her uncle. In the case of a forcible rape, courts have long placed great emphasis on the failure of a complaining witness to report the rape. It is thought that to report such an occurrence to a parent or friend is so natural that the failure to do so is of probative importance and casts doubt upon an allegation of rape. Here, however, there is no contention that the child was violated against her will. The evidence, in fact, is indicative of consent. Consent or lack of it, however, is not an element of the crime charged. Nevertheless, it is not to be expected that the child would complain about intercourse consented to as she would about a sexual act forced upon her. The same test, therefore, should not be used to judge her credibility. In any event, this is again a matter of credibility to be determined by the trial judge when he is acting as the fact finder. State v. Fischer (1938), 228 Wis. 131, 135, 279 N. W. 661, 662.

An act of intercourse seldom takes place before the eyes of witnesses. Hence, it is rare that there is any corroboration in the usual sense. Our courts have long accepted the testimony (if believed) of the complainant as sufficient to sustain a conviction of rape or sexual intercourse with a child. Lanphere v. State (1902), 114 Wis. 193, 89 N. W. 128; Haley v. State (1932), 207 Wis. 193, 240 N. W. 829; State v. Fischer (1938), 228 Wis. 131, 279 N. W. 661; State v. Fries (1945), 246 Wis. 521, 17 N. W. (2d) 578; State v. Pickett (1951), 259 Wis. 593, 49 N. W. (2d) 712. The testimony of the complainant must be convincing and not inherently incredible. In the case of Cleaveland v. State, supra, the court stated that when the evidence upon its face bears the stamp of unreliability, the testimony is suspect and must be corroborated. In Cleaveland, however, the testimony of the complainant in regard to a material fact was disputed by the several eyewitnesses. In the instant case no facts were presented that would lead the court to view the testimony of the complaining witness with suspicion.

Moreover, the testimony of the complainant is substantially corroborated by notes exchanged between the complainant and the defendant. These notes, which the defendant admits were written by him, indicate more than an avuncular concern for the child. They evince resentment and jealousy that she would sit with boys on the school bus. The defendant wrote to the girl, “Did you come sick yet. Have you went over before. How long if so.” The finder of fact might well have, and did, as his opinion shows, associate this question with Gauthier’s concern that the child was pregnant. In another note he wrote, “I . . . wanted . . . to hold and hug you and also make love to you.”

These notes were found hidden in the barn at the complainant’s farm home. It appears that after the defendant was ordered off the farm he attempted to have a brother of the complainant get the notes from where they were concealed and return them to the defendant. The boy, however, was unable to find the notes, and subsequently they were found by the father and turned over to the district attorney. The trial judge commented that, in his opinion, the defendant’s anxiety at getting the papers from where they were secreted demonstrated a realization on his part that the notes would be incriminating. In any event, the notes are corroborative of an unusual degree of intimacy between the girl and her uncle. The inferences that the trial judge drew from these statements are not unwarranted and are corroborative of the child’s testimony.

Defendant also claims that the trial judge committed error in the admission of evidence.

He contends that the court denied his request that all the notes found in the barn be put into evidence. The record fails to bear this out. Rather, it appears that defense counsel failed to seek the introduction of any additional notes, though the judge encouraged him to do so and the district attorney said he would not object. His contention is without merit.

The trial judge also permitted the introduction of an FBI “wanted” circular. This circular was published and circulated following the issuance of a federal warrant for “unlawful flight” after the defendant’s escape from jail while awaiting trial. This flyer was properly admitted into evidence as tending to show the fact of Gauthier’s flight from custody. Kanner v. United States (7th Cir. 1929), 34 Fed. (2d) 863, 866.

“It is to-day universally conceded that the fact of an accused’s flight, escape from custody . . . and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” 2 Wigmore, Evidence (3d ed.), p. 111, sec. 276.

See also 20 Am. Jur., Evidence, p. 276, sec. 298; and 1 Wharton’s, Anderson, Criminal Evidence (12th ed.), p. 262, sec. 139.

The complainant was also permitted to testify from notes that she prepared almost three years after the offenses took place and about three months before the trial. She testified that she wrote the notes after the district attorney asked her to write down what she remembered, and were to “recall back three years before what happened.” The testimony thus reveals that it was the witness’ own recollection that was the basis of these notes and that was refreshed by them. Wigmore has stated the rule thus:

“That the paper was not drawn up about the time of the events is not a fault. The recollection may be equally refreshed by a recent note as by some contemporaneous record.” 3 Wigmore, Evidence (3d ed.), p. 105, sec. 761.

See also McCormick, Evidence (hornbook series), p. 15, sec. 9; 98 C. J. S., Witnesses, p. 83, sec. 358; 58 Am. Jur., Witnesses, p. 324, sec. 579.

It was perfectly proper for the complainant to testify from the notes that she had prepared. In Smith v. State (1959), 205 Tenn. 502, 540, 327 S. W. (2d) 308, 325, the court stated :

“After two years time it was natural for anyone when they know they are going to be put on the witness stand to sit down and think about the matter and jot down notes before they got on the witness stand so that they could refresh their recollection from them.”

The trial judge after careful questioning determined that it was the witness’ own recollection that was refreshed and, hence, her testifying with the aid of notes, though not made contemporaneous with the event, was not error.

Additionally, though it appears that all the evidence of which the defendant complains was properly admitted, it should be remembered that this was a trial before the court and not a jury. While evidence that is not admissible in a jury trial is equally inadmissible in a trial to the court, yet this court views the situation as distinct. We have previously stated:

“In a case tried by the court the admission of improper evidence is to be regarded on appeal as having been harmless, unless it clearly appears that but therefor the finding would probably have been different.” Birmingham v. State (1938), 228 Wis. 448, 454, 279 N. W. 15, quoting from Topolewski v. State (1906), 130 Wis. 244, 109 N. W. 1037.

The evidence adduced, believed, and rationally considered was sufficient to prove the defendant’s guilt beyond a reasonable doubt. There was nothing incredible about the testimony of the complaining witness and much of the testimony she gave was corroborated. Nor will the interest of justice be served by a new trial. Sec. 251.09, Stats., authorizes the supreme court in its discretion to order a new trial when it “shall appear to that court from the record, that ... it is probable that justice has for any reason miscarried, . .

We see no evidence that the trial was not fair, or that a new trial would produce a different result. On the contrary, it would appear that the finding of the court was the inevitable consequence of the evidence properly before it.

The judgment of the court and the order denying a new trial are affirmed.

By the Court. — Judgment and order affirmed.

        State v. Waters, ante, pp. 148, 153, 135 N. W. (2d) 768; State v. Johnson (1960), 11 Wis. (2d) 130, 137, 104 N. W. (2d) 379; State v. Stevens (1965), 26 Wis. (2d) 451, 463, 132 N. W. (2d) 502.