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

      October 8

    November 2, 1965.

      For the appellant there was a brief and oral argument by Theodore W. Coggs, attorney, and Harvey L. McCormick of counsel, both of Milwaukee.
    For the respondent the cause was argued by Robert E. Sutton, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Fottette, attorney general, and Hugh R. O’Connell, district attorney.
   Hallows, J.

In respect to the claim of an unlawful search and seizure the facts seem not to be in dispute. About 10:30 p. m. on December 8, 1962, three Milwaukee police officers from the narcotics division of the vice squad arrested Dodd on an assault and battery warrant in an apartment on the north side of Milwaukee. At that time he was dressed in pajamas and was in the company of one Janice Nelson who was clothed in a negligee and a robe. Upon learning Dodd and Janice Nelson were not married and Dodd had been living at the apartment for about a month, the police placed Dodd under arrest for lewd and lascivious conduct. The officers then made a search of the apartment which consisted of a living room, bedroom, dining room, bathroom, and kitchen. Off of the living room was a small closet, in which one of the police officers found a knitted-shirt sweater belonging to Dodd and upon going through its pockets found two seeds of marijuana. The search continued of other clothing in the closet, a dresser, the bathroom, and other parts of the apartment. Marijuana was found in clothing which belonged to Janice Nelson but that search is not before us.

Prior to trial, Dodd moved to suppress the evidence of the marijuana found in his shirt pocket on the ground the search was unreasonable in scope as a search incidental to either an arrest for battery or for lewd and lascivious conduct. Upon his trial, the evidence of the marijuana, over his objection, was allowed in evidence and the conviction resulted.

It is claimed by the state the search was reasonable because a search upon arrest may be properly made of property within the immediate presence, control, and surroundings of the person arrested for weapons and for evidence of the crime of battery and further, since Dodd was clad in pajamas, the police were entitled to search the defendant’s clothing as a constructive extension of his person in order to make sure he obtained no weapons while dressing. It is further claimed that because Dodd was arrested for lewd and lascivious behavior they were authorized to search the premises for evidence and fruits of that crime such as clothing, rent receipts, and keys; and if, in the process of such search, contraband material was found, it could be confiscated and would constitute evidence of the crime of possession of marijuana.

This explanation of the scope and intensity of the search as incidental to the two arrests is unconvincing and on the facts the search seems to this court to be an exploratory search for narcotics without a search warrant and wholly unjustified as an incidental search to an arrest for battery or for lewd and lascivious behavior. In Barnes v. State (1964), 25 Wis. (2d) 116, 130 N. W. (2d) 264, this court, relying on United States v. Lefkowitz (1932), 285 U. S. 452, 52 Sup. Ct. 420, 76 L. Ed. 877, said an arrest may not be used as a pretext to search for evidence. In State v. Stevens (1964), 26 Wis. (2d) 451, 132 N. W. (2d) 502, we stated (p. 458):

“A search incidental to an arrest whether of the person or place must bear a reasonable relationship in time and place to the arrest. Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169; Preston v. United States (1964), 376 U. S. 364, 84 Sup. Ct. 881, 11 L. Ed. (2d) 777. Such a search being without a warrant is limited under the rules of reasonableness and fair play by the purpose or purposes for which the defendant was arrested. Harris v. United States (1947), 331 U. S. 145, 67 Sup. Ct. 1098, 91 L. Ed. 1399; United States v. Rabinowitz (1950), 339 U. S. 56, 70 Sup. Ct. 430, 94 L. Ed. 653. With such scope of the search, instruments, evidence, and fruits of the crime for which the defendant was arrested may be searched for and seized. Likewise, weapons and instruments of escape may be searched for and taken to insure the safety of the arresting officers and the custody of the person arrested. Agnello v. United States (1925), 269 U. S. 20, 46 Sup. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Browne v. State, supra; Stoner v. California (1964), 376 U. S. 483, 84 Sup. Ct. 889, 11 L. Ed. (2d) 856. If in the process of such reasonable search contraband or other material is found which may constitute evidence of other crimes, such contraband and material may be seized. Abel v. United States (1960), 362 U. S. 217, 80 Sup. Ct. 683, 4 L. Ed. (2d) 668.”

It seems rather strange that three police officers of the narcotics division of the vice squad were necessary to arrest an ordinary citizen at 10:30 at night for a battery if that was all that was involved. A search for weapons in the clothing to be worn by Dodd would hardly include such a minute search of a pocket in a shirt as would disclose two seeds of marijuana. Nor would the search for evidence of the crime of battery as bloody clothing justify such an intensive search of a shirt pocket. Not much more can be said for the search for evidence or fruits of the crime of lewd and lascivious behavior — openly cohabiting with a person not one’s spouse under circumstances which imply sexual intercourse.

Searches by police officers when incidental to an arrest or pursuant to a warrant must be reasonable. As we stated in State v. Stevens, supra, page 459: “One test of reasonableness seems to be whether the police are looking for incriminating evidence under an exploratory or rummaging search under the guise of a proper purpose incident to a lawful arrest. Go-Bart Importing Co. v. United States (1931), 282 U. S. 344, 51 Sup. Ct. 153, 75 L. Ed. 374; United States v. Lefkowitz (1932), 285 U. S. 452, 52 Sup. Ct. 420, 76 L. Ed. 877.” The search to be reasonable under the Fourth amendment to the United States constitution and sec. 11, art. I of the Wisconsin constitution must be limited not only in time and place but also by the purpose of the arrest. A search which might be reasonable as incidental to an arrest for one crime may be entirely unreasonable as an incident to an arrest for another crime. An arrest for possessing narcotics may ground a search which would be entirley unreasonable as a search incidental to an arrest for lewd and lascivious conduct. The record does not disclose whether Dodd was ever prosecuted on his arrest for the battery or for lewd and lascivious conduct, but whether he was or not, the facts point to an unreasonable search for narcotics as an incident of an arrest unassociated with such contraband. The search being unreasonable it was in violation of Dodd’s constitutional rights and it was error to deny the motion to suppress such evidence and the admission of evidence resulting from such search being prejudicial, the conviction based thereon must be reversed.

In Case No. 7690, Dodd argues there is not sufficient evidence to sustain his conviction. After the arrest for lewd and lascivious behavior and while Dodd was out on bail he married Janice Nelson and lived with her in a dwelling on the north side of Milwaukee. On the evening of June 12, 1963, police officers had Dodd’s house under surveillance and had seen two known drug addicts enter the house around 10 p. m. They stayed about forty-five minutes and later upon being arrested, one of these persons furnished the information upon which the search warrant was issued authorizing the search for narcotics. About 4 a. m. on June 13, 1963, police officers went to Dodd’s home to execute the search warrant. The officers gained entrance by knocking down the kitchen door and entered the kitchen and then the bedroom. By flashlight, the officers observed the defendant standing beside his bed and his wife lying in the bed. The lights in the bedroom were turned on and a search made of the premises by the officers. The search disclosed an eyedropper with , a black bulb on the floor near the feet of the defendant as he stood beside his bed. This was later found to contain a residue of heroin. A hypodermic needle was found in a floor register of the bedroom about seven or eight feet away from where the defendant was standing. Four tinfoil packages containing traces of white powder, later identified as heroin, were found in the bathroom. Testimony at the trial disclosed Dodd did not have any fresh marks on his arms indicating he had recently used heroin.

It is claimed by Dodd there is insufficient proof to convict him beyond a reasonable doubt because: (1) He had no control of the heroin which was found and (2) the heroin was of such a small quantity as to be incapable of use. This court has not previously decided whether it was necessary to show actual possession of a narcotic in order to be- found guilty of possession under sec. 161.02, Stats.; nor has this court yet decided what quantity of a narcotic is necessary to be in the possession of a person to constitute a violation of the section. Most jurisdictions which have considered the first point have held actual physical possession of a narcotic is not necessary, it being sufficient if the defendant has constructive possession or is “within such juxtaposition” to the narcotic as to justify a finding of possession. See Anno. Narcotic—Possession—What Constitutes, 91 A. L. R. (2d) 810; People v. Galloway (1963), 28 Ill. (2d) 355, 192 N. E. (2d) 370; State v. Hunt (1962), 91 Ariz. 149, 370 Pac. (2d) 642; Mickens v. People (1961), 148 Colo. 237, 365 Pac. (2d) 679; Wheeler v. State (1956), 164 Tex. Crim. 189, 297 S. W. (2d) 184; Peachie v. State (1953), 203 Md. 239, 100 Atl. (2d) 1.

The heroin was discovered in the house occupied solely by Dodd and his wife. The eyedropper with heroin in it was found in his bedroom within inches of his feet. Four tinfoil packages which contained traces of heroin were found in the refuse container in the bathroom. No claim is made by Dodd that the heroin was not in his exclusive constructive control because his wife had as much control of the house as he did. Proof of joint possession has been held to support a conviction especially in husband-and-wife situations. People v. Embry (1960), 20 Ill. (2d) 331, 169 N. E. (2d) 767; Gallegos v. People (1959), 139 Colo. 166, 337 Pac. (2d) 961; King v. State (1959), 169 Tex. Crim. 34, 335 S. W. (2d) 378; State v. Puckett (1961), 34 N. J. 574, 170 Atl. (2d) 437.

Dodd took the stand in his own behalf and suggested or inferred that the presence of the drug was due to the visit earlier that night of the two known drug addicts. But such testimony would not overcome the physical facts which give rise to an inference of knowledge and constructive possession on the part of Dodd which under the circumstances were sufficient to establish the guilt of unlawful possession of heroin beyond a reasonable doubt. Although it is apparent Dodd did not use the heroin personally, the possession of a narcotic prohibited by the section is not restricted to possession for personal use. Gonzales v. People (1953), 128 Colo. 522, 264 Pac. (2d) 508; State v. Reed (1961), 34 N. J. 554, 170 Atl. (2d) 419, 91 A. L. R. (2d) 797.

Dodd argues the quantity of heroin was so minute as to be unusable and, therefore, not sufficient to constitute a violation. It is conceivable that so small a quantity of a narcotic might be present as to telltale or indicate only that there had been a prior possession of a narcotic but which could not be said reasonably to constitute the object of possession. Sec. 161.02, Stats., is a part of the Uniform Narcotic Drug Act which has been adopted by most of the states. The majority rule seems to be that possession of a modicum of an illegal drug is sufficient to bring the defendant within the purview of the statute. Mickens v. People, supra; Peachie v. State, supra; Schenher v. State (1956), 38 Ala. App. 573, 90 So. (2d) 234; People v. Norman (1962), 24 Ill. (2d) 403, 182 N. E. (2d) 188; People v. Marich (1962), 201 Cal. App. (2d) 462, 19 Cal. Rptr. 909.

A modicum means a little or a small quantity and this is to be understood in relationship to the nature of the drug. The amount need not be a usable amount and it was said the quantity of the drug possessed is not material. Peachie v. State, supra. This view is taken because the statute does not prescribe any minimum amount which must exist. Narcotics are contraband and dangerous, causing untold harm to users and to the public by illegal use. A more liberal interpretation favorable to drug addicts and those illegally dealing in narcotics cannot reasonably be given. Dodd relies on State v. Moreno (1962), 92 Ariz. 116, 374 Pac. (2d) 872, and People v. Pippin (1962), 16 App. Div. (2d) 635, 227 N. Y. Supp. (2d) 164, but to the extent those cases stand for a rule that a usable amount of a narcotic is necessary for conviction, we refuse to follow them.

The heroin found in the packets and the eyedropper bulb was a discernible amount and sufficient to use in the performance of chemical tests to determine not only its presence but its nature; it was considerably more than microscopic. We think the intent of sec. 161.02 (1), Stats., was to prohibit the possession of any narcotic because of its dangerous characteristics and, therefore, a modicum or a small amount is sufficient to ground a conviction under that section.

By the Court. — The order denying the motion to suppress and the judgment of conviction in Case No. 7175 are reversed; the judgment of conviction in Case No. 7690 is affirmed.

       “Acts prohibited; evidence; penalties; commitment of addicts. (1) It is unlawful for any person to manufacture, possess, have control of, buy, sell, give away, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this chapter. Any person violating this subsection shall be punished as provided in s. 161.28 (1).”


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

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

      October 8

    November 2, 1965.

      For the appellant there were briefs by Cashman & Savage of Manitowoc, and oral argument by John R. Cashman.

    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 Robert E. Koutnik, district attorney of Manitowoc county.

       Motion for rehearing denied, without costs, on January 4, 1966.

   Beilfuss, J.

The defendant contends (1) that the court’s instructions to the jury on self-defense and evidence of previous good character were confusing and prejudicial; (2) that the verdict was contrary to the law and contrary to the evidence, and that a new trial should be granted in the interests of justice; (3) that defendant should be found not guilty by reason of being insane; and (4) that a new trial should be granted in the interests of justice because the foreman of the jury should not have been allowed to remain on the jury.

The defendant’s counsel, in the brief filed in her behalf, states:

“The instructions were the general instructions used in cases in this kind. It is not the instructions of the Court in this particular case that we complain about, but it is the whole instructions in cases of this kind, that in our opinion do more to confuse the jury than to assist it.”

The defendant was represented by competent counsel of long standing. The record, however, does not reveal a request for any specific instruction on any phase of the case except the oral request: “And I ask the court to instruct on the privilege of self defense and on insanity.” To which the court responded, “It will.”

The brief and argument of counsel are directed to a complaint of the instructions on self-defense and good-character reputation.

The instruction on self-defense given by the court was substantially the same as Wis J I — Criminal, Part I, 805, 810. These instructions are the product of painstaking effort of an eminently qualified committee of trial judges, lawyers, and legal scholars, designed to accurately state the law and afford a means of uniformity of instructions throughout the state. They are, as stated by counsel, “the general instructions used in cases of this kind.” These uniform instructions are not infallible. However, their content is readily known and if they are considered inaccurate or prejudicial they should be challenged by written requested instructions or at least objection made on the record at the time they are given so that if they are erroneous, correction can be made before the jury arrives at a verdict. In this instance neither a request for a specific instruction nor objection to the instruction as given appear in the record.

We have examined the instruction as given and do not find it inconsistent with sec. 939.48 (1), Stats., nor otherwise erroneous.

The portions of the instruction complained about qualify the privilege of self-defense to the standard of “what a person of ordinary intelligence and prudence would have done in the position of the defendant under the circumstances existing at the time of the alleged offense.”

This instruction does direct the jury to apply the objective standard of the ordinary intelligent and prudent person. However, this standard is not that of an ordinary intelligent and prudent person under any circumstances but limited to one “in the position of the defendant under the circumstances existing at the time of the alleged offense.” In our opinion, this instruction gives the jury sufficient latitude to consider all of the motivating factors at the time and place. A lesser standard could justify a wanton and malicious attack beyond that necessary for self-defense.

The instruction given on previous good character is challenged. It is the same as Wis J I — Criminal, Part I, 270, and is almost verbatim the instruction approved in Niezorawski v. State (1907), 131 Wis. 166, 177, 111 N. W. 250.

We conclude there was no error in the instructions given on self-defense and on previous good reputation.

On appeal in criminal cases the test of sufficiency of the evidence is whether the “evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” State v. Waters, ante, p. 148, 153, 135 N. W. (2d) 768, quoting from State v. Stevens (1965), 26 Wis. (2d) 451, 463, 132 N. W. (2d) 502.

Sec. 940.02, Stats., defines second-degree murder as follows:

“Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years.”

The evidence clearly establishes that the death of George Kanzelberger was caused by a blow or blows to the head inflicted by the defendant by means of an Indian club. Historically, the Indian club was designed for this very purpose.

The defendant’s defenses were twofold: (1) Self-defense, and (2) temporary insanity.

These défenses were ably presented to the jury by counsel for defendant in the evidence adduced and argument to the jury. The jury rejected both of these defenses as they were entitled to do in their judgment under the proof before them.

Her statements made to the police and to the neighbors shortly after the act, the instrument used, the violence of the attack as evidenced by the severity of the injury, and the lack of evidence of physical struggle in the cottage constitute sufficient evidence to warrant a jury finding of second-degree murder. It is apparent the jury did not believe the defendant intended to kill her husband but they did find, upon sufficient credible evidence, that she did cause his death by conduct imminently dangerous to another and evincing a depraved mind. We have stated that second-degree murder is first-degree murder without intent to kill. The jury verdict of second-degree murder cannot be set aside under the facts of this case.

The defendant urges that we re-examine and change the definition of insanity as it is used as a defense in criminal cases. The definition as given by the trial court in its instructions to the jury was taken from State v. Esser (1962), 16 Wis. (2d) 567, 599, 115 N. W. (2d) 505, and is as follows:

“ ‘The term “insanity” in the law means such an abnormal condition of the mind, from any cause, as to render the defendant incapable of understanding the nature and quality of the alleged wrongful act, or incapable of distinguishing between right and wrong with respect to such act.’ ”

The defendant does not contend that the instruction is an erroneous statement of the law but states the law should be changed.

Dr. Belcher testified that when he examined the defendant a few days after the event she was suffering from a gross stress reaction, which is not a mental illness.

Drs. Keane and Houfek testified that at the time of the event she was suffering from a mental illness described as acute disassociative reaction and that her act was the product of a mental disorder.

All three doctors testified that she did have sufficient mental capacity to understand the nature and quality of her act and was capable of distinguishing right from wrong with respect to such act.

Clearly, the jury could reject the defense of insanity by applying the Esser test to the medical testimony.

This court has recently given thorough consideration to the proper definition to be adopted for the defense of insanity in the trial of persons charged with criminal acts. A reading of the opinions in Kwosek v. State (1960), 8 Wis. (2d) 640, 100 N. W. (2d) 339, and State v. Esser, supra, will readily convince the reader that the court has thoroughly reviewed and considered the several definitions of insanity proposed to or adopted by various courts of the country; and that the members of this court are not unanimous in their opinions as to the proper definition. While the personnel of this court has changed to some degree since the Kwosek and Esser decisions were announced, we are. not inclined to re-examine this problem upon the record before us. No suggestion of any kind was made to the trial court as to a change in the rule until after the verdict was returned. Nor are the arguments advanced by counsel on this appeal persuasive that a change should be made.

If we are to re-examine the rule of Esser we deem it should be done only upon a proper record in the form of written request for instructions in the trial court and persuasive and compelling argument here.

Our reluctance to further delve into this troubled legal issue is alluded to in our statement in Brook v. State, supra, page 47:

“The state in oral argument requested that this court definitely declare that psychopaths fall without the pale of such ‘abnormal condition of the mind’ as to bring them within the definition of insanity set forth in the Esser Case. We do not deem it advisable to accede to this request because to do so might only further add to the confusion which already exists in this field of criminal law. Further it would freeze into the law a concept with which some psychiatrists now disagree, and in which there is considerable fluidity of scientific knowledge and opinion.
“Essentially the insanity defense presents a moral issue to juries in criminal cases as to whether a particular defendant should be held criminally accountable for the offense with which he is charged. We feel that the rather-strict test of insanity now laid down in the Esser Case definition of insanity should not be further narrowed, and that juries should have some latitude in making this type of moral judgment.”

The final assignment of error upon which a new trial is requested is that the foreman of the jury did not respond to a question at voir dire examination as to whether the prospective jurors knew the deceased George Kanzelberger.

After the notice of appeal was filed, and shortly before oral argument, counsel for defendant obtained a written affidavit from one Lester Lonzo to the effect that the affiant, the foreman of the jury Oscar Eis, and George Kanzelberger had attended St. Luke’s Parochial School in Two Rivers, Wisconsin, in 1913 and 1914, and Oscar Eis knew George Kanzel-berger.

The affidavit of a third person that two other persons knew each other because they attended the same school some fifty years ago does not in any way establish that the juror had any present recollection of the acquaintance if, in fact, it did exist. There is nothing to indicate that the juror had any association thereafter or any knowledge or experience with George Kanzelberger that could in any way affect his judgment for or against the defendant.

The reference made by Lonzo in his affidavit is so remote as to time and lacking in essential detail as to be of negligible probative value and insufficient as a basis for finding error.

A suggested proper procedure in challenges of this kind is to move for a new trial in the trial court and to petition the court, in its discretion, to subpoena the affiant and the juror to determine the fact by examination under oath in a supplementary proceeding.

By the Court. — Judgment affirmed.

       “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what he reasonably believes to be an unlawful interference with his person by such other person. The actor may intentionally use only such force or threat thereof as he reasonably believes is necessary to prevent or terminate the interference. He may not intentionally use force which is intended or likely to cause death or great bodily harm unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

       “Testimony has been received regarding the reputation of the defendant for (truth and veracity) . . . (being peaceable and law-abiding) prior to the time when it is alleged he committed the offense charged.

        “Such evidence should be considered along with all the other evidence in the case, and if after such consideration you entertain any reasonable doubt as to the guilt of the defendant, you must acquit him.
      “But, if upon the whole evidence in the case, including the testimony as to the reputation of the defendant, you are satisfied of his guilt beyond a reasonable doubt, then it is immaterial what his reputation has heretofore been as to (truth and veracity) . . . (being peaceable and law-abiding).”

         Brook v. State (1963), 21 Wis. (2d) 32, 43, 123 N. W. (2d) 535.


author: Heffernan, J.

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

      October 8

    November 2, 1965.

      For the plaintiff in error there was a brief by George G. Lorincsi and Lorincsi & Weiss, attorneys, and James M. Shellow and Shellow & Shellow of counsel, all of Milwaukee, and oral argument by George G. Lorincsi.

    For the defendant in error the cause was argued by Paul T. Miller, 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.
   Heffernan, J.

The plaintiff in error takes the position that inasmuch as the misdemeanor convictions which occurred during the period of probation were set aside, that the subsequent revocation of probation is without foundation in fact. He, of course, assumes that the mere fact of conviction was the basis of Judge Steffes’ revocation.

A careful perusal of the record does not bear this out. The record shows that on March 2, 1964, upon the court’s finding Hughes guilty on the forgery counts, that he asked the court for leniency and for another opportunity on probation. The court questioned the defendant, going over in detail his past criminal record, and attempted to make a determination of how well the defendant would take advantage of probation were it granted. On the basis of the facts elicited at that time, the court concluded that the defendant would be given another opportunity on probation.

Some of the conditions of the probation were that he was to pay all the costs of the prosecution, that he was to conduct himself as a good law-abiding citizen, that he was to stay out of trouble, and that he was not to violate any of the laws of the state or any local ordinances. The drinking of any intoxicating liquors and the entry of taverns were forbidden to him. He was directed to obtain employment and to make a full restitution for the forged checks.

On August 12, 1964, Hughes was arrested, and subsequent thereto was found guilty in the county court for selling liquor without a license and for disorderly conduct. It was as a consequence of this conduct and these convictions that the probation officer again brought Hughes before Judge Steffes on October 21, 1964. The probation officer testified under oath that Hughes did not secure private employment, that he did not start any program for the payment of restitution, that he offered to sell a half a pint of whiskey to an officer, and that after the officer attempted the arrest, Hughes forcefully resisted the arrest.

Hughes admitted that he attempted to make the sale of the liquor. He denied, however, that he knew the person he resisted was an officer properly authorized to make an arrest. It was also brought out at the revocation hearing that he had been having relations with a woman not his wife and that, as a consequence thereof, she was pregnant.

The record of the revocation hearing made it abundantly-clear that during the seven months that he was at liberty on probation, he had done little or nothing to rehabilitate himself.

Although the court heard the evidence that the county court had convicted Hughes of two misdemeanors, it did not base its order of revocation upon those convictions. Judge Steffes’ order revoking probation was couched in the following terms:

“In this case, upon all the files, records and proceedings therein, the testimony today and statements in open court by this defendant, the Court finds that this defendant has violated the terms and conditions of his probation.”

It was subsequent to this date of revocation that the county judge vacated the misdemeanor convictions. We do not find, however, that this is particularly pertinent, since the record reveals that Judge Steffes relied not on the fact of conviction but on the conduct of the probationer, and he specifically found that his conduct was violative of his terms of probation.

This court has on numerous occasions stated that:

“Probation is not a matter of right but is conferred by the court as a privilege upon the withholding of sentence or the staying of its execution, if the court has determined from the defendant’s character and the circumstances of the case that the defendant is not likely again to commit crime and that the public welfare does not require that he shall suffer the penalty of the law.” State v. Scherr (1960), 9 Wis. (2d) 418, 423, 101 N. W. (2d) 77.

We have also said in Brozosky v. State (1928), 197 Wis. 446, 453, 222 N. W. 311, that the probation statute:

“. . . gives the court the discretion to determine whether the good of society and of the defendant will be promoted by placing the defendant on probation and also the power to determine when that probation should be terminated. Beneficent results could not be secured under the probation law if every probationer was entitled to a trial — perhaps a jury trial — to determine whether his probation should be terminated. The legislature has wisely charged the court with the duty of determining whether a defendant shall be placed upon probation in the first place, and given it the power to determine in a summary way whether that probation shall be terminated. The vesting of such power in the court does not deprive the defendant of any of his constitutional rights. When one has been found guilty of an offense against society, no constitutional provision guarantees him the right to produce proof or to try out the issue of what his punishment shall be. That is a question that must be determined by society, which has vested that power in the courts.”

The federal courts have reached a similar conclusion and have held that:

“All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.” Manning v. United States (5th Cir. 1947), 161 Fed. (2d) 827, 829.

These cases make it evident that the revocation of probation is a matter of judicial discretion and if discretion is, in fact, exercised and if there be some basis in fact for the judge’s determination that the conditions of probation have been violated, this court will not set the order aside.

The petitioner urges that it is a proper statement of the law that when a revocation of probation is based upon a conviction and that conviction is set aside, the underlying basis upon which revocation was made is without support in fact, and therefore the revocation is void.

At least one text writer gives some support to the petitioner’s argument. Sol Rubin, writing in The Law of Criminal Correction, West Publishing Company (1963), at page 631, states that:

“While behavior without arrest could not be questioned, discharge following arrest is itself proof of failure to establish the behavior, and as such could well be considered a reply to the charge of misbehavior.”

The same section, however, of Mr. Rubin’s text makes it clear that:

“. . . probation and parole are in practice frequently revoked following arrest of the probationer or parolee, even where the arrest is followed by discharge.”

Had the judge relied solely upon the record of conviction as the basis of the revocation, we might well be obliged to consider this contention. However, we need not reach that question. Evidence of the probationer’s conduct was presented to the court and was admitted by the probationer. Judge Steffes’ order made that conduct (not the conviction) the basis of the revocation. We find that not only did Judge Steffes not abuse the great discretionary powers that are vested in a judge by our probation statute, but in fact that he reached the only conclusion proper under the state of this record. The order of February 2, 1965, is affirmed.

By the Court. — Order affirmed.


author: Currie, C. J. Per Curiam

text:
    State ex rel. Youmans, Respondent, v. Owens, Mayor, Appellant.

      October 8

    November 2, 1965.

      For the appellant there was a brief by Hippenmeyer & Reilly of Waukesha, and oral argument by Richard, S. Hippenmeyer.

    For the respondent there was a brief by Lowry, Hunter & Tikalsky, and oral argument by Thomas E. Anderson and Richard N. Hunter, all of Waukesha.
    A brief amicus curiae was filed by Foley, Sammond & Lardner, James P. Brody, and John R. Collins, all of Milwaukee, for the Journal Company.

       Motion for rehearing denied, without costs, on January 19, 1966.

   Currie, C. J.

These three issues are raised by this appeal :

(1) Is petitioner the real party in interest ?

(2) Does sec. 18.01, Stats., apply to the report sought to be obtained by petitioner ?

(3) If sec. 18.01 does apply, is the right of inspection subject to any limitations ?

Real Party in Interest.

Sec. 260.13, Stats., provides, “Every action must be prosecuted in the name of the real party in interest except as otherwise provided in section 260.15.”

Defendant asserts that the real party in interest in this case is the Waukesha Freeman and that the suit should not be allowed to proceed in the name of the petitioner. In this regard defendant relies heavily on a number of Freeman headlines and news stories which indicated that the newspaper was bringing the lawsuit. A newspaper headline is of no value in the legal determination of who is the real party in interest.

One of the leading cases which has established the guiding principles for determining whether a party is the real party in interest is Marshfield Clinic v. Doege. The court therein quoted with approval from 15 Encyc. Pl. & Pr., p. 710, the following:

“ ‘The real party in interest, within the meaning of this provision of the code, is the person who will be entitled to the benefits of the action if successful; one who is actually and substantially interested in the subject matter, as distinguished from one who has only a nominal, formal, or technical interest in or connection with it.’ ”

Plaintiff surely fits within this definition because if successful he will be the one entitled to make the inspection. That his motivation in seeking inspection is to benefit his newspaper and permit it to publish the material gained therefrom is immaterial. The fact that he as a citizen deems it essential that the material contained in the report be made available to the public is sufficient to qualify him as the real party in interest.

Applicability of Sec. 18.01.

Subs. (1) and (2) of sec. 18.01, Stats., provide:

“ (1) Each and every officer of the state, or of any county, town, city, village, school district, or other municipality or district, is the legal custodian of and shall safely keep and preserve all property and things received from his predecessor or other persons and required by law to be filed, deposited, or kept in his office, or which are in the lawful possession or control of himself or his deputies, or to the possession or control of which he or they may be lawfully entitled, as such officers.
“(2) Except as expressly provided otherwise, any person may with proper care, during office hours and subject to such orders or regulations as the custodian thereof may prescribe, examine or copy any of the property or things mentioned in subsection (1).”

While technically it may be inaccurate to refer to the papers filed by City Attorney Buckley with defendant mayor as a “report” we do so in the interest of brevity. Defendant contends that the afore-quoted statutory provisions do not extend to this report because it was not “required by law” to be filed with the mayor. However, the statutory words of sub. (1) “or which are in the lawful possession or control of himself” extend the applicability of the statute to some papers and documents not required by law to be filed, deposited, or kept in the mayor’s office.

The leading case dealing with inspection of public records and documents pursuant to sec. 18.01, Stats., is International Union v. Gooding. In that case plaintiff union requested an alternative writ of mandamus to compel defendant and others, representing the Wisconsin employment relations board, to make available a petition on file with the board. There was no statutory provision authorizing the filing of this petition because it sought to invoke a jurisdiction which the board did not possess. Plaintiff asserted it was entitled to look at the petition under sec. 18.01 (1) and (2). In considering what papers and records the statute applied to, the court said:

“Sec. 18.01 (1), Stats., in supplanting all the existing legislation heretofore mentioned, deals with three specific types of papers that must be kept by an officer and delivered to a successor in office: (1) Such books, papers, records, etc., as are required by law to be filed, deposited, or kept in his office; (2) books, papers, etc., in his possession as such officer; (3) books, papers, etc., to the possession of which he is entitled as such officer (Emphasis supplied.)

In determining that the trial court had correctly denied the motion to quash the writ, the court emphasized its position by stating:

“It is clear enough that it was supposed by the legislature that numerous papers other than those required by specific statute or rule to be kept should remain in the files as a part of the records of an office. ... It is the rule independently of statute that public records include not only papers specifically required to be kept by a public officer but all written memorials made by a public officer within his authority where such writings constitute a convenient, appropriate, or customary method of discharging the duties of the office.”

This overruled sub silento the dictum appearing in the final paragraph of the opinion in State ex rel. Spencer v. Freedy in which the conclusion was expressed that sec. 18.01, Stats., only allowed inspection of “anything required by law to be filed, deposited, or kept in a public office.”

Defendant mayor as “head of the . . . police departments” is entitled to a report of any investigation of the police department made by the city attorney. We deem it wholly immaterial, on the issue of whether defendant was in legal custody of the papers sought to be inspected, that here the city attorney did not submit a formal report stating the conclusions he had reached as a result of his investigation, but instead merely filed with the mayor the statements of persons interviewed and interdepartmental memoranda. We conclude that sec. 18.01 (1) and (2), Stats., is applicable to the documents with respect to which petitioner seeks to compel inspection.

Limitations on Right to Inspect.

However, merely because the papers sought to be inspected, although not required by law to be filed or kept by defendant, were in his lawful possession, did not automatically entitle petitioner to inspect them. The inspection provisions of sec. 18.01 (1) and (2), Stats., were contained in a revisor’s bill and prior to that enactment there existed no statute which attempted to spell out the rights of members of the public to inspect public records. The revisor’s notes to sub. (2) of sec. 18.01 stated that this subsection “is believed to give expression to the general implied right of the public to consult public records.” The court in the Gooding Case quoted this statement and then declared:

“In view of the presumption that a revisor’s bill is not intended to change the law we conclude that this is the scope of the section. While it is possible to contend that the words are so clear as not to be subject to construction we are of the view that the common-law right of the public to examine records and papers in the hands of an officer has not been extended.
“We shall not go into the scope of the common-law right exhaustively or attempt to document our observations upon it. It is enough to say that there are numerous limitations under the common law upon the right of the public to examine papers that are in the hands of an officer as such officer. Documentary evidence in the hands of a district attorney, minutes of a grand jury, evidence in a divorce action ordered sealed by the court are typical. The list could be expanded but the foregoing is enough to illustrate that in certain situations a paper may in the public interest be withheld from public inspection. Whatever limitations existed at common law still exist under sec. 18.01 (2), Stats.”

An authoritative statement of the common-law right of inspection of public documents is that made by the Vermont court in Clement v. Graham as follows:

“We think it may be safely said that at common law, when not detrimental to the public interest, the right to inspect public records and public documents exists with all persons who have a sufficient interest in the subject-matter thereof to answer the requirements of the law governing that question.”

Thus the right to inspect public documents and records at common law is not absolute. There may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents. Thus, the one must be balanced against the other in determining whether to permit inspection. An illustration of a type of situation in which the harm to the public interest, if inspection were permitted, was held to outweigh the individual’s right to inspect is provided by City & County of San Francisco v. Superior Court. There the records sought to be inspected contained information which had been gathered from employers under the pledge that it would be kept confidential. To have permitted inspection would not only have constituted a breach of this pledge, but would have seriously handicapped governmental agencies in gathering information in the future under a similar pledge because of distrust that the pledge would not be observed.

We deem it unwise to attempt to catalog the situations in which harm to the public interest would justify refusal to permit inspection. It is a subject which had best be left to case-by-case decision.

The duty of first determining that the harmful effect upon the public interest of permitting inspection outweighs the benefit to be gained by granting inspection rests upon the public officer having custody of the record or document sought to be inspected. If he determines that permitting inspection would result in harm to the public interest which outweighs any benefit that would result from granting inspection, it is incumbent upon him to refuse the demand for inspection and state specifically the reasons for this refusal. If the person seeking inspection thereafter institutes court action to compel inspection and the officer depends upon the grounds stated in his refusal, the proper procedure is for the trial judge to examine in camera the record or document sought to be inspected. Upon making such in camera examination, the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.

In reaching a determination so based upon a balancing of the interests involved, the trial judge must ever bear in mind that public policy favors the right of inspection of public records and documents, and, it is only in the exceptional case that inspection should be denied. In situations, such as in the instant case, where inspection is sought of a number of documents, the ultimate decision after conducting the balancing test might be to grant inspection as to certain of the documents and deny it as to others. If a single record or document is sought to be inspected, and disclosure of only a portion is found to be prejudicial to the public interest, the trial judge has the power to direct such portion to be taped over before granting inspection.

Here the testimony does not disclose that defendant stated any reason for refusing to permit inspection at the time inspection was requested of him. Paragraphs 5 and 6 of defendant’s return states these reasons for denying inspection:

“5. That, on information and belief, the said miscellaneous papers prepared by others than the said John P. Buckley and the statements given by various persons related, among other things, to pending and potential civil claims against the City of Waukesha and to possible ordinance violations and were documentary evidence under the control of the said John P. Buckley, City Attorney, and were part of and consisted of his ‘work product’ as attorney for said City of Waukesha.
“6. That, on information and belief, the examination of said miscellaneous papers and statements, and the probable publication of parts thereof by the petitioner would not be in the public interest at this time, but on the contrary would be harmful to the public interest.”

Defendant cites no case authority in which a report such as the instant one was held to be the “work product” of an attorney and free from investigation. This doctrine has evolved to protect the work product of an attorney in respect to a specific case from being subject to discovery by the opposite party. Since the investigative report in the instant case was not gathered for any particular litigation, and obviously not for the instant litigation, it is clearly not protected by the “work product” theory. As the court said in Park & Tilford Distillers Corp. v. United States:

“We then must assume defendant’s position to be that the papers here sought were trial preparation materials assembled by the OPA for use in any contest that might develop in litigation wherein the OPA might be a party. It cannot be said that these papers were gathered by the United States Attorney as part of his preparation for the instant case and therefore within the ‘work product privilege’ . ...”

While the instant report does not qualify as an attorney’s work product so as to entitle it to be kept from compulsory disclosure, City Attorney Buckley gave testimony tending to establish the possibility that harm would occur to the city if this report were made public. He testified that one claim had already been filed in which damages were sought against the city by reason of acts by the police department, and that an attorney had been employed to prosecute the claim. He further stated that as a result of the documents constituting the report he had knowledge of other potential claims which might be made against the city.

In addition to the argument that the interest of the city might be harmed by disclosure because of pending and potential claims based on police conduct referred to in the report, defendant contends that the reputations of the policemen involved might be damaged by granting inspection contrary to the legislative policy embodied in sec. 14.90 (3) (e), Stats. Sec. 14.90 has been referred to as the “Public’s Right to Know” statute and requires open meetings of state and local governing and administrative bodies, boards, commissions, committees, and agencies, except where executive or closed sessions are held for certain enumerated purposes. Sub. (3) (e) of this statute provides:

“(3) Nothing herein contained shall prevent executive or closed sessions for purposes of:
“(e) Financial, medical, social or personal histories and disciplinary data which may unduly damage reputations;”

We determine that this legislative policy of not disclosing data which may unduly damage reputations carries over to the field of inspection of public records and documents. The statutory word “unduly” is significant. As applied to inspection it does not bar all inspection of public records and documents that might damage reputations, but requires a balancing of the interest of the public to be informed on public matters against the harm to reputations which would likely result from permitting inspection.

In the instant situation the public interest to be served by permitting inspection is to inform the public whether defendant mayor has been derelict in his duty in not instigating disciplinary proceedings against policemen because of wrongful conduct disclosed in the report. If the report contains statements of persons having first-hand knowledge, which disclose police misconduct, the fact that reputations may be damaged would not outweigh the benefit to the public interest in obtaining inspection. On the other hand statements based upon hearsay or suspicion, or inconclusive in nature, would be of small public benefit if made public, and might do great harm to reputations.

No claim has been made that the investigation of the Waukesha police department is still continuing, or that inspection of the report would interfere with any contemplated disciplinary action.

No prior Wisconsin case has laid down the requirement that the public officer who refuses a request to permit inspection of public records because he believes it to be harmful to the public interest, or because it would unduly damage reputations, must justify such refusal by specially stating his reasons therefor. Accordingly, although defendant failed to state a valid reason for his determination to refuse inspection to petitioner, we conclude that justice requires that the cause be remanded to the circuit court so that court can make a proper determination as to whether inspection should be granted under the guidelines herein laid down.

By the Court. — Judgment reversed, and cause remanded for further proceedings consistent with this opinion.

The following memorandum was filed January 19, 1966.

Per Curiam

(on motion for rehearing). Relator’s brief, in support of his motion for rehearing, points out that prior to enactment of sec. 18.01, Stats., in 1917 as part of a revisor’s bill there existed certain statutes which authorized inspection of certain public records. There are many statutes that impose upon particular public officers the duty to keep certain records which evidence an express or implied legislative intent that such records be open to public inspection. With respect to public records of this category the common-law rule applied in the instant case would be inapplicable, and consequently the officer custodian thereof would have no right to refuse public inspection.

Except for this qualification of the original opinion, which does not affect the determination of the instant case, we are not persuaded that any further change should be made therein. The motion for rehearing is, therefore, denied without costs.

       (1955), 269 Wis. 519, 69 N. W. (2d) 558.

       Id. page 523.

       (1947), 251 Wis. 362, 29 N. W. (2d) 730.

       Id. page 369.

       Id. pages 370, 371.

       (1929), 198 Wis. 388, 233 N. W. 861.

         Sec. 62.09 (8) (d), Stats.

       Ch. 178, Laws of 1917.

        Supra, footnote 3, pages 372, 373.

       (1906), 78 Vt. 290, 63 Atl. 146.

       Id. pages 315, 316. Other authorities in accord are Fayette v. Martin (1939), 279 Ky. 387, 130 S. W. (2d) 838; Egan v. Board of Water Supply (1912), 205 N. Y. 147, 98 N. E. 467; Zuppa v. Maltbie (1947), 190 Misc. 778, 76 N. Y. Supp. (2d) 577; Chytracek v. United States (D. C. Minn. 1932), 60 Fed. (2d) 325; 76 C. J. S., Records, p. 133, sec. 35.

        MacEwan v. Holm (1961), 226 Or. 27, 359 Pac. (2d) 413, 85 A. L. R. (2d) 1086.

       (1951), 38 Cal. (2d) 156, 238 Pac. (2d) 581.

       This procedure is similar in nature to the procedure this court outlined in State v. Richards (1963), 21 Wis. (2d) 622, 633, 124 N. W. (2d) 684, for determining whether counsel for a defendant in a criminal prosecution shall be entitled to see and make use of, for impeachment purposes, a statement given before trial by a witness for the state.

       (D. C. N. Y. 1957), 20 FRD 404.

       Id. page 406. In accord is Tobacco & Allied Stocks v. Transamerican Corp. (D. C. Del. 1954), 16 FRD 534, 537. See also Hanover Shoe, Inc., v. United Shoe Machinery Corp. (D. C. Pa. 1962), 207 Fed. Supp. 407.

       Those cited are secs. 138, 141 (5), 142, 186, 768 (3), 832 (9), 880 (5), Stats. 1915.


author: Fairchild, J. Per Curiam

text:
    Bellart, Respondent, v. Martell, d/b/a Big Bend Precast Company, Appellant.

      September 8

    November 5, 1965.

      For the appellant there were briefs by Grootemaat, Cook & Franke, attorneys, and Robert E. Cook and Francis R. Croak of counsel, all of Milwaukee, and oral argument by Robert E. Cook.

    For the respondent there was a brief by Wickham, Bor gelt, Skogstad & Powell, attorneys, and Norman C. Skogstad
      and Richard E. Sommer of counsel, all of Milwaukee, and oral argument by Mr. Sommer and Mr. Norman C. Skogstad.

       Motion for rehearing denied, without costs, on January 20, 1966.

   Fairchild, J.

The safe-place statute, sec. 101.06, Stats., requires every owner of a place of employment or a public building to construct and maintain it so as to render the same as free from danger as the nature of the employment, place of employment, or public building, will reasonably permit. The learned circuit judge instructed the jury that Martell had this duty, under the circumstances of this case, both because the plant was a place of employment and a public building. If the instruction was correct with respect to its being a place of employment, it would be unnecessary to examine its status as a public building.

1. Martell’s plant as a place of employment. Sec. 101.01 (1), Stats., provides in part:

“The phrase 'place of employment’ includes every place . . . where . . . any industry, trade or business is carried on . . . and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit . . . .”

Martell carried on a business at his plant. Thus the first condition was fulfilled. The issue is whether the second one was also.

Sec. 101.01 (4), Stats., provides:

“The term 'employe’ shall mean and include every person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.”

It is conceded that there had been employees at work in the plant until about two months before the accident, and that there were employees at some time afterward. The record does not suggest that the character or volume of the business changed materially at any time during the entire period. Immediately before, at, and after the time of the accident Mrs. Martell was performing services of the type usually performed by employees, but no one else, other than Mr. and Mrs. Martell, was working there. Another person became employed either in November or December after the accident, or in June, 1960. The testimony is conflicting on this point.

Mrs. Martell testified she assisted her husband in the business, handled the books and billing, ran the tile machine, made mixes, loaded the truck. The business receipts were put into the bank in the name of Big Bend Precast. She made deposits and wrote checks. She did not keep track of the amount of time she spent at work. When the family needed money for living expenses, she would withdraw money for that purpose from the Big Bend account. She had no agreement as to a rate of pay for her work. When asked what remuneration she received, she replied: “I lived there.”

Her husband testified as follows:

“Q. Isn’t it — Isn’t it a fact that she was reimbursed for the work that she did in there? A. Dollars and cents-wise?
"Q. Well, how was she reimbursed? A. Three meals a day.
“Q. I see. A. There wasn’t much money.
“Q. I understand. She didn’t draw a wage then as such from you? A. No.”

Presumably there was more money in the Big Bend account than there would have been if Mrs. Martell had not worked. The benefits she received were all of a type which could be categorized as marital support, although the level of support was presumably higher than it could have been if she had not worked in the plant.

It is true that a wife who assists her husband in his business efforts is not necessarily his employee. Defendant’s counsel cites authority for the .proposition that in the absence of a special contract, services performed by a wife are presumed to be gratuitous. We conclude that the present record does not establish, as a matter of law, that Mrs. Martell was her husband’s employee when performing services at the plant.

The safe-place statute protects frequenters in a place of employment, as well as employees. In the present case, the plant had been a place of employment about eight weeks before the accident and became one again either in a few weeks, or, at most, eight months later. The record does not show whether Martell’s use of his wife’s services was a temporary expedient, with an intention on his part again to employ someone to render the same service, or whether Martell intended for an indefinite future period to get along without any employee. We recognize that the statute defines a place of employment as a place where a person is employed. It seems unreasonable, however, to deem that an established place of employment ceases to be one where it is operated temporarily without the existence of any employment relationship, but without other significant change. Bearing in mind the purpose of the safe-place statute, we consider that it is appropriate in the circumstances of this case to impose upon the employer the burden of proving that the use of his wife’s services, in lieu of those of an employee, was not a temporary expedient. Upon this theory, and there being no proof that Mr. Martell intended to operate the plant permanently with only the assistance of his wife, we sustain the instruction given the jury that Martell owed the duties of an owner of a place of employment.

2. Opinion testimony with respect to safety orders. Mr. Edgar Burkhardt testified when called by plaintiff. He was formerly a deputy safety inspector for the industrial commission, but is now retired. He inspected the mixer a few days after the accident. He testified that there was a violation of safety orders of the industrial commission, applicable to a place of employment, secs. 1.21 and 1.24, as they existed in 1959.

In 1959 sec. Ind 1.21 (Wis. Adm. Code (1956)), read:

“Projecting parts on shafts. Every projecting part on a revolving shaft such as a collar, clamp, pin, coupling, oiling device, etc., where exposed to contact, (which shall include exposure while oiling machinery in motion), shall be guarded.”

Mr. Burkhardt considered that the arms which were attached to the revolving shaft, and to which the mixing blades were in turn attached, constituted projecting parts on a revolving shaft, exposed to contact. He conceded that these projecting parts were not specifically enumerated in the safety order but he indicated that he thought these parts fell within the term “etc.” It seems obvious that the enumeration was not intended to be exclusive.

In 1959 sec. Ind 1.24 (Wis. Adm. Code (1956)), read in part:

“Revolving, oscillating or reciprocating parts of engines and other machines. (1) Cranks or crank discs, crank shafts and connection rods, where exposed to contact, shall be guarded.”

Mr. Burkhardt expressed the opinion that the attachment of the arm to the revolving shaft amounted to a crank, exposed to contact, and required to be guarded under sec. 1.24 (1).

Defendant Martell claims that this testimony was improper because it constituted the witness’ opinion on a question of law, i.e., the meaning of the safety orders. We have held, however, that expert opinions are admissible when they explain the meaning and practical application of the terms of safety orders and where the expert’s special knowledge may be deemed helpful to the jury.

Other expert witnesses testified as to the availability of a guard, to the use of guards on similar mixers at other plants, and that without the guard the machine was not as safe as it reasonably could have been. This testimony was relevant to the issue whether the place of employment was kept as free from danger as the nature of the place of employment will reasonably permit.

We find no abuse of discretion in accepting the testimony of these witnesses as experts.

3. Exposure of stumps to the jury. As a result of the accident Bellart underwent amputation of the right hand two inches above the wrist and amputation of his left leg well above the knee. In testimony relevant to the issue of damages, Bellart described the prosthetic devices he used on each limb. He told of various difficulties which he had experienced and described the manner in which the stump of his left leg must be carefully maneuvered into a position in the device where there is a proper fit.

He also described a shoulder harness worn on the left shoulder and used in controlling the hook on the prosthesis of the right arm. Later, with his shirt off, he demonstrated to the jury the way the shoulder harness, cords, and a wire activate the claw. He then removed the prosthesis from his arm and counsel described it for the record. Defense counsel moved for a mistrial because the bare stump of the arm had been exposed to the jury for two to five minutes. The motion was denied.

On another day Bellart briefly exposed the stump of his left leg before the jury and another motion for mistrial was made and denied.

The total of all the damages found by the jury was $160,000 and medical expenses of $4,955.92 were determined by the court. Defendant concedes that the damage verdict is not excessive and shows no influence by improper considerations. Defendant also concedes that the question of whether parts of the body should be exposed before the jury under similar circumstances ordinarily lies in the sound discretion of the court. He contends, however, that there was an abuse of discretion in this case and that the display served only to inflame and unduly prejudice the jury. He contends also that such prejudice has been reflected in the answers to the liability issues although not apparent in the damage findings.

We do not find an abuse of discretion. Upon this record, the learned circuit judge may reasonably have concluded that a brief view of the stumps would make Bellart’s testimony concerning the use and difficulties of the prosthetic devices more meaningful. Moreover, it seems to us improbable that these exhibitions affected any of the findings on liability issues.

4. Comparison of negligence. Defendant points out that defendant was guilty only of an omission whereas plaintiff, knowing that a guard was lacking, negligently allowed his hand to get into the machine. Defendant contends that Bellart’s negligence was both active and so high in degree as to be equal to, or greater than defendant’s negligence as a matter of law. We find, however, no basis upon which to interfere with the comparison of negligence made by the jury.

By the Court. — Judgment affirmed.

The following memorandum was filed January 20, 1966.

Per Curiam

(on motion for rehearing). The appellant on his motion for rehearing has alerted us that language in the opinion that, “. . . we consider that it is appropriate in the circumstances of this case to impose upon the employer the burden of proving that the use of his wife’s services, in lieu of those of an employee, was not a temporary expedient,” could be misinterpreted as stating that the burden of proof was shifted to the employer. Such an interpretation was not intended by the court. The phrase properly interpreted means merely that the employer had the burden of going forward with the evidence. The burden of persuasion or proof did not shift.

Motion for rehearing denied without costs.

        Estate of Goltz (1931), 205 Wis. 590, 238 N. W. 374; Sprinkle v. Ponder (1951), 233 N. C. 312, 64 S. E. (2d) 171; Smith v. Smith (1961), 255 N. C. 152, 120 S. E. (2d) 575, and 41 C. J. S., Husband and Wife, p. 414, sec. 18.

         Allison v. Wm. Doerflinger Co. (1932), 208 Wis. 206, 211, 242 N. W. 558; Bent v. Jonet (1934), 213 Wis. 635, 644, 252 N. W. 290; Candell v. Skaar (1958), 3 Wis. (2d) 544, 551, 89 N. W. (2d) 274.

        Allison v. Wm. Doerflinger Co., supra, footnote 2.


text:
    State ex rel. Roth, Respondent, v. Ryan, Appellant.

      November 18, 1965.

      For the appellant there was a brief by Clyde E. Sheets and Robert M. Siegman, both of Milwaukee.
    No brief or appearance for the respondent.
   Heffernan, J.

The respondent (plaintiff below) filed no brief in this court. Therefore, the appeal is not decided on the merits, but the judgment is reversed pursuant to sec. (Rule) 251.57, Stats., which provides:

“When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument.”

For other decisions which have reversed as of course under this rule, see Cihlar v. Harvey (1965), 27 Wis. (2d) 269, 133 N. W. (2d) 815; State v. Seymour (1964), 24 Wis. (2d) 258, 262, 128 N. W. (2d) 680; Fuller v. Fiedler (1963), 19 Wis. (2d) 422, 426, 120 N. W. (2d) 700; Estate of Ohnstad (1962), 15 Wis. (2d) 361, 112 N. W. (2d) 917; State ex rel. Gresholdt v. Board of Appeals (1961), 12 Wis. (2d) 516, 107 N. W. (2d) 484.

By the Court. — Judgment reversed, with directions to dismiss the complaint.

Wilkie, J., took no part.