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

      June 4

    June 30, 1964.

      For the plaintiff in error there was a brief by Patri, Nolan, Crane & Engler and Gary R. Yokes, all of Oshkosh, and oral argument by Mr. Yokes.

    For the defendant in error the cause was argued by Betty R. Brown and William A. Plats, assistant attorneys general, with whom on the brief was George Thompson, attorney general.
   Hallows, J.

The writ of error required the three cases to be returned to this court. In its brief the state argues the writ of error should be dismissed because this court cannot review three judgments in separate cases on one writ of error although this is done in respect to counts in a single case. We have this day in Ronzani v. State, ante, p. 512, 129 N. W. (2d) 143, decided that the irregularity of attempting to have several judgments of conviction or sentencing entered in separate cases reviewed by a single writ of error may, under sec. 269.51 (1), Stats., be waived by failure to make a timely objection or a motion to dismiss. We think the objection here comes too late when asserted for the first time in the defendant’s brief. The objection or motion to dismiss should have been made prior to the defendant’s taking part in this review. We hold, therefore, the three separate cases are now properly before us.

James contends that because Judge Sitter was assistant district attorney involved in the 1960 conviction for fraudulently transferring encumbered property, he was disqualified from acting as judge to sentence him on that conviction. It is argued there was no trial on the information as James pleaded guilty and, therefore, sec. 256.19, Stats., does not apply. Judge Sitter as assistant district attorney not only signed the information but took part in the criminal proceedings which resulted in the conviction of James. He handled the case in court and was present at the arraignment, plea, and conviction, and took part in the hearing when James was placed upon parole. In short, he actively represented the state in the proceeding.

If a judge is interested in any action or proceeding or has acted as attorney for either of the parties, he has no power to hear and determine such action or proceeding or to make any order thereon except by the consent of the parties thereto. Sec. 256.19, Stats. We find no express or implied consent of the parties to Judge Sitter’s passing sentence on the conviction for fraudulently transferring encumbered property. The state argues that sec. 256.19 has no application because Judge Sitter had no financial interest in the action and because no trial was involved, relying on Goodman v. Wisconsin Electric Power Co. (1945), 248 Wis. 52, 20 N. W. (2d) 553. That case did hold that the purpose of the statute was to provide a fair and impartial trial and in order to defeat that purpose the interest of the trial judge must be pecuniary and real rather than indirect and remote. True, Judge Sitter had no financial interest but he had represented a party. We cannot agree with the state’s argument that this section applies in a criminal case only to the determination of guilt of the accused and, therefore, has no application to the process of sentencing. We do not read the Goodman Case as limiting the statute to only the contested part of an action or proceeding or to that part which is technically called the trial.

Even if Judge Sitter was not disqualified under sec. 256.19, Stats., he should have disqualified himself from sentencing James. Such disqualification would seem to be a part of the procedural due process embodied in the Fourteenth amendment of the United States constitution. It is true most of the procedural due-process concepts apply to the actual trial phase of a case. See In re Murchison (1955), 349 U. S. 133, 75 Sup. Ct. 623, 99 L. Ed. 942; Anno. Disqualification of Judge, 72 A. L. R. (2d) 443. It must be recognized that procedural due process after conviction does not mean the same thing as. due process at the trial on the merits. Townsend v. Burke (1948), 334 U. S. 736, 68 Sup. Ct. 1252, 92 L. Ed. 1690; Williams v. New York (1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337; State ex rel. Volden v. Haas (1953), 264 Wis. 127, 58 N. W. (2d) 577. However, we .cannot look upon sentencing as some insignificant and collateral part of the criminal process. The determination of the sentence, whether it be long or short, is part of the judicial process and is perhaps the most vital part and certainly the end result of the criminal process so far as the accused is concerned. In that process he is entitled to the determination of an impartial judge as well as during the process of determining guilt. The rule requiring disqualification operates whether the judge, in fact, is or is not biased or prejudiced.

On the record we do not find Judge Sitter was in fact biased or prejudiced. The record indicates otherwise. He sentenced James to two years to be served concurrently with another two-year sentence. Because of this James will not spend a single extra day in prison. We reject the argument that because Judge Sitter was disqualified in one case he was necessarily biased and prejudiced in' the other two cases, and consequently James’ right to a fair and impartial trial was denied.

Under the rule of Babbitt v. State (1964), 23 Wis. (2d) 446, 127 N. W. (2d) 405, this court on this writ of error is restricted in its review to the judgment of sentencing in the nonsupport and in the fraudulent transfer of encumbered-property cases. The time for appeal from the judgment of conviction in these cases has long expired and only the judgment of sentencing is before us. Thus, whatever contentions or errors raised on constitutional grounds for the reversal of the conviction as distinguished from the sentence in the case involving the fraudulent transfer of encumbered property are beyond the scope of this review but may be raised by writ of habeas corpus. However, in the grand-theft case both the judgment of conviction and the judgment of sentencing are properly before us on writ of error.

In the theft case the conviction is attacked on the ground that the failure of the trial judge to inform James of the possible consequences of his decision concerning his right to counsel effectively denied James that right. We must consider this contention in the light of the limits of the scope of a writ of error. Basic is the requirement the error appear as such on the record. Sec. 957.26 (2), Stats., requires the trial court upon arraignment and before plea to advise the accused charged with a felony of his right to counsel of his choice and to further advise that if the accused is indigent the court will appoint counsel at the expense of the county at his request.

The record shows the court advised James of his right to counsel and if he were shown to be indigent, counsel would be appointed at county expense. James declined counsel, stating he wanted to get the matter over with. The information was then read to him and his plea accepted. It is true the information contained repeater allegations which were not contained in the complaint. But the record shows James immediately after his plea of guilty questioned one of the dates of a conviction as to correctness. At the time of the sentencing, upon being asked whether there was anything he would like to say why sentence should not be pronounced, he responded in the negative.

On the face of the record the court complied with the statute in advising James of his right to counsel. It is not error for the trial court to fail to advise an accused of the possible consequences of his failure to have counsel including the possible sentence that might be imposed if he should plead guilty to the information unless the record also shows the accused did not understand the charge, his right to counsel, and other facts which would support a finding of a nonintelligent waiver. When such facts do not appear on the record, the issue cannot be raised by writ of error but must be left for the postconviction remedy of habeas corpus. Here, however, the record shows a mature adult who had served time in the Wisconsin prison and also time in the federal penitentiary; he has had some experience with courts, pleas, and criminal procedure. It may be that he did not know of the repeater or recidivist statute and that his sentence on the theft charge could be increased because of his prior convictions. But to constitute error the record must show the accused in fact did not know and the court knowing this fact did not instruct him of the consequences of waiving his right to counsel.

While James made a motion which he entitled a motion to quash and dismiss and correct the record, it was not claimed as a ground that he did not intelligently waive his right to counsel or enter the plea of guilty. If a motion to withdraw the plea and for trial had been made on the grounds of an unintelligent waiver of counsel and plea of guilty and a prima facie showing made by affidavit or proof of the facts, this court on writ of error could consider the constitutional issue upon the denial of the motion. Such was the procedure followed in Ailport (Garbe) v. State (1960), 9 Wis. (2d) 409, 100 N. W. (2d) 812. The issue may be effectively raised by a writ of habeas corpus as was done in State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91; and State ex rel. Casper v. Burke (1959), 7 Wis. (2d) 673, 97 N. W. (2d) 703.

On the record we hold there was no error.

By the Court. — Sentence on the conviction for nonsupport, Winnebago county court file No. A 6276, affirmed; sentence on the conviction for fraudulently transferring encumbered property, Winnebago county court file No. 6326, vacated; and the conviction and sentence in the case involving grand theft, Winnebago county court file No. A 98, are affirmed.

       “256.19 Judges disqualified, when. In case any judge of any court of record shall be interested in any action or proceeding in such court or shall have acted as attorney or counsel for either of the parties thereto such judge shall not have power to hear and determine such action or proceeding or to make any order therein, except with the consent of the parties thereto.”


source: Caselaw Access Project

author: Dieterich, J.

license: Public Domain

text:
    State ex rel. Jenkins, Plaintiff, v. Fayne, Defendant. Coggs, Appellant, v. County Court of Milwaukee County, Respondent.

      June 4

    June 30, 1964.

      For the appellant there was a brief and oral argument by Harvey L. McCormick of Milwaukee.
    For the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Plats, assistant attorney general.
   Dieterich, J.

The facts are not in dispute. Appellant Coggs is an attorney, and was retained to represent the defendant in a paternity proceeding before the county court. The county court called the case for trial on April 23, 1963, and neither the defendant nor Mr. Coggs was present. No explanation of their absence was given at the time. The trial began, and the testimony of the complaining witness was being taken when the defendant Fayne entered the courtroom alone. The complaining witness’ testimony was read to the defendant, and he was then examined. At 9:40 a. m., after the testimony was closed, Attorney Coggs appeared and the county court held him in contempt and fined him $25.

Coggs served a notice of appeal to the circuit court for Milwaukee county, and the appeal was assigned to the civil division of the circuit court. The circuit court dismissed the appeal, and stated in a memorandum decision that the contempt for which Mr. Coggs was cited was a criminal contempt committed in a branch of the civil division of the county court; and that sec. 299.30 (3), Stats., does not authorize an appeal to the circuit court from a citation for criminal contempt.

The only issue before this court is whether the circuit court had jurisdiction to hear the appeal from the order of the county court finding appellant Coggs in contempt.

The circuit court stated in its memorandum decision that the appeal should have gone to the supreme court and not the circuit court. Sec. 274.09 (1), Stats., provides in part as follows:

“Appeals to the supreme court may be taken from the circuit courts unless expressly denied and also from the county courts except where express provision is made for an appeal to the circuit court . . .”

Sec. 324.01, Stats., is entitled, “Appeals from county court,” and provides in part that:

“Any person aggrieved by any order or judgment of the county court may appeal therefrom to the supreme court, and the provisions of chapter 274 shall apply.”

There is no statute authorizing appeals to the circuit court from county court contempt citations.

The appellant argues, however, that the alleged offense for which he was fined was a misdemeanor, and therefore appealable to the circuit court under sec. 958.075 (1), Stats., which reads in part as follows:

“Misdemeanor appeals from county court. (1) Appeals in misdemeanor cases are to the circuit court for the county . .

A misdemeanor is defined by sec. 939.60, Stats., in the following terms:

“A crime punishable by imprisonment in the state prison is a felony. Every other crime is a misdemeanor.”

Thus, in arguing that contempt is a misdemeanor the appellant assumes that it is a crime. The punishment for contempt is set forth not in the criminal code, but under the chapter dealing with general court provisions (ch. 256, Stats.), and also in the chapter specifically devoted to “con-tempts in civil actions.” (Ch. 295, Stats.) It is true that contempt is punishable by fine or by imprisonment or both, pursuant to secs’. 256.06 and 295.13, Stats.; and it is also true that sec. 256.03 speaks of “criminal contempt.” However, from a reading of sec. 256.07, it is clear that the legislature has not deemed all so-called “criminal contempt” citations to be “crimes,” for that section provides for possible criminal prosecution in addition to the punishment imposed by the other sections of ch. 256. Sec. 295.17 similarly subjects persons proceeded against under ch. 295 to an indictment or information for “the same misconduct” if it be an indictable offense.

This court, under an earlier statute, held that conviction of contempt of court was not “conviction of a criminal offense.” Farrell v. Phillips (1909), 140 Wis. 611, 617, 123 N. W. 117. See also State ex rel. Rodd v. Verage (1922), 177 Wis. 295, 324, 325, 187 N. W. 830. Although a person punished for contempt may be liable to indictment and information for such offense, a “criminal contempt” is not a crime or misdemeanor as those terms are generally defined in the statutes.

In the absence of statutory authorization for appeals from county court to circuit court, the proper route for an appeal in the instant situation is via appeal'to the supreme court. The appellant’s failure to follow the statutory procedures for appeal is fatal in the instant action.

We determine that the circuit court was correct in concluding that it did not have jurisdiction to hear the appeal.

By the Court. — Order affirmed.

       Sec. 299.30 deals with appeals from judgments entered in small claims actions, and provides in part that:
      “(3) . . . within 20 days after the date of mailing of notice of entry of the judgment, as appears in the case docket, any appeal . . . may be taken to the circuit court by any party to an action or proceeding from any final judgment . . .”

       Sec. 256.07 “Ciuminal prosecution for contempt. Persons punished for a contempt, under the preceding provisions, shall, notwithstanding, be liable to indictment or information for such offense; but the court before which a conviction shall be had on such indictment or information shall, in forming its sentence, take into consideration the punishment before inflicted. . . .”


text:
    City of Milwaukee, Respondent, v. Antczak, Appellant.

      June 4

    June 30, 1964.

      For the appellant there was a brief by Eisenberg & Kletz-ke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.

    For the respondent there was a brief by John J. Fleming, city attorney, and Maurice L. Markey, assistant city attorney, and oral argument by Mr. Markey.

   Dieterich, J.

A prosecution for violation of a municipal ordinance is a civil action under sec. 66.12 (1) (a), Stats., and the only question on the instant appeal is whether there is any credible evidence to support the verdict of the jury.

The record reveals the following facts. On October 26, 1962, at approximately 10:50 p. m., the appellant was arrested and charged with driving while intoxicated. The arresting officers testified that they first observed Antczak after his truck had been involved in a minor accident on South Chase avenue in the city of Milwaukee. They testified that he was swaying and unsteady on his feet; that his speech was quite slurred, and that they noticed a strong odor of alcohol on his breath. The appellant was taken to police headquarters, where he was given the usual tests. A urinalysis revealed that the alcohol content in his blood was 20/100ths of one percent by weight. The standard coordination tests were also administered to him — he was asked to write his name, to touch his nose with his finger, to pick up coins, to walk a straight line, etc., and he was also given a verbal test. The officers testified that the only test he “passed” was the one involving picking up coins. Appellant admitted having five small bottles of beer at a tavern prior to his arrest.

The appellant Antczak testified that on the day of his arrest he had been working with fiber glass, which made his eyes watery; that he drank warm beer because of a stomach condition, and that warm beer gives off a stronger odor than cold beer; that he swayed on his feet and could not negotiate the “straight line” test because he had shrapnel in one foot and glass in both feet as a result of his tour of duty in the armed forces; and that when he took the handwriting test, one of the officers was pulling on his arm. After testifying to the above reasons for his performance in the tests, he was asked the following questions on cross-examination :

“Q. You don’t claim you got anything wrong with your tongue, do you? A. No, sir.
“Q. Now, you heard the officers testify that you spoke with a very slurred manner of speech, a thick tongue. A. That’s what they said.
“Q. You ever been treated for any disease of the tongue? A. No, sir.
“Q. You have any malocclusion of your teeth? A. No, sir.
“Q. Ever sustained any injury to your mouth that would impair your speaking ability ? A. No.”
Defendant’s counsel: “Object to this as having been answered already. Its repetitious.”
Prosecution: “I’m just trying to find out what’s wrong with his mouth. We have been through most everything else.”
The Court: “All right, sustained.”

The arresting officers testified after observing the appellant at the trial that his speech was not then as slurred as it had been on the night of the arrest, and that he was not swaying as he had been on that night.

The appellant attacks the various co-ordination tests administered to him at police headquarters as being sham, designed to prejudice the jury, and of no value whatsoever. The record reveals that the urinalysis test showed 20/100ths of one percent of alcohol in the appellant’s bloodstream. Sec. 325.235 (1) (c), Stats., provides as follows:

“The fact that the analysis shows that there was fifteen-hundredths of one percent or more by weight of alcohol in the person’s blood is prima facie evidence that he was under the influence of an intoxicant, but shall not, without corroborating physical evidence thereof, be sufficient upon which to find the person guilty of being under the influence of intoxicants.”

It is the appellant’s position that the aforementioned tests are not sufficient “corroborating evidence” to support a conviction. Such tests, however, are given at the station house after the arrest has been made, and are designed to verify the condition of a person who has already been arrested because of his condition. Therefore, the critical facts are those existing at the time the officers first observed the appellant on South Chase avenue. The officers, who testified as to their experience in observing intoxicated persons, smelled a strong odor of alcoholic beverages on appellant’s breath; they testified that he was swaying and unsteady on his feet, and that his speech was heavy and slurred. They also testified as to certain minor abnormalities in his conduct at the scene. The rule is that even a lay witness, who has had the opportunity to observe the facts upon which he bases his opinion, may give his opinion as to whether a person at a particular time was or was not intoxicated. The evaluation of the opinion of such a witness is for the jury. Milwaukee v. Johnston (1963), 21 Wis. (2d) 411, 414, 415, 124 N. W. (2d) 690.

The jury obviously believed the testimony of the officers and regarded it as credible — notwithstanding appellant’s explanations of his physical appearance. Such testimony is sufficient corroboration under sec. 325.235, Stats.

Appellant also argues that the prosecuting attorney’s cross-examination as to whether or not Antczak had something wrong with his mouth was an improper invasion of his basic constitutional rights, and, as such, must be considered reversible error. This contention is wholly without merit. Appellant had attempted to explain away almost every facet of his conduct on the night in question — the bloodshot eyes were attributed to exposure to fiber glass; the strong odor of alcohol resulted from the warm temperature of the beer he had consumed; his swaying was caused by shrapnel and glass in his feet; his collision with the parked car was due to newly installed brakes on his truck, etc. It was at this point that the prosecuting attorney began to question the appellant as to his slurred speech — one of the few things left unexplained by appellant on the direct examination. We cannot say, upon the record before us, that such comments constitute a basis for reversal.

There being credible evidence to support the verdict of the jury, the judgment entered thereon must be affirmed.

By the Court. — Judgment affirmed.

       “An action for violation of a city or village ordinance, resolution, or bylaw is a civil action.” See State ex rel. Keefe v. Schmiege (1947), 251 Wis. 79, 86, 28 N. W. (2d) 345, and Milwaukee v. Bub (1962), 18 Wis. (2d) 216, 218, 118 N. W. (2d) 123.


text:
    Paaske, Appellant, v. Perfex Corporation, Respondent.

      June 4

    June 30, 1964.

      For the appellant there were briefs and oral argument by Charles Saggio of Milwaukee.
    For the respondent there was a brief by Moore & Moore of Milwaukee, and oral argument by Raymond J. Moore.

       Motion for rehearing denied, with costs, on September 2, 1964

   Dieterich, J.

The only issue involved on the instant appeal is whether there was a violation of the safe-place statute. The record reveals the following facts. On November 16, 1959, appellant Justin Paaske was employed as a mason by the Hackett Construction Company, and was working on the premises of the respondent Perfex Corporation in the city of Milwaukee. Paaske was constructing a wall which was to eventually enclose an open area between two buildings belonging to Perfex. The wall upon which he was working joined the existing wall of the building at right angles. Several steel beams protruded from the existing wall at six-foot intervals, and extended approximately six feet out from the surface of the wall. The beams were approximately 13 feet from the ground. On the date of the accident, November 16, 1959, Paaske was working on a scaffold approximately 10 feet off the ground. He testified that the beams were about three feet above the scaffold, and that there was about three and one-half feet from the end of the beams to the outside edge of the scaffold. Paaske stated that he had piled some bricks under one of the beams and was in a stooped-over position arranging the bricks, when he turned and his “tailbone” hit the beam, knocking him off the scaffold to the blacktop-surfaced lot below.

Paaske further testified that he had been working on the job for two or three weeks, and had bumped his head on a beam on a previous occasion, at which time he asked the foreman to have the beams removed. He also stated that his mind was on his work, and on the Perfex lift trucks operating on the ground beneath him at the time of his fall, and that he was not aware that the beam was behind him when he collided with it. According to Paaske, he had no opportunity to place the scaffold on the outside or opposite side of the wall containing the beams, because of the proximity of a cyclone fence and railroad track. He also testified at one point that the beams were removed after the accident. On the argument, opposing counsel disputed this fact, stating that only one beam was removed for other purposes, although the defendant-respondent did not cross-examine Paaske, and put in no witnesses of his own. It should be noted, however, that the record contains a transcript of the proceedings held at the outset of the trial when the jury traveled to the Perfex plant for a view of the premises. At that time, counsel for the appellant pointed out to the jury “the beams sticking out of the wall” and made repeated references to the appearance of “the beams,” the distances “between the other steel beams,” etc.

The safe-place statute, sec. 101.06, Stats., provides in part as follows:

“Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof . . . and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.”

The trial court determined that there was no violation of the safe-place statute. The duty under the statute is not absolute, and the term “safe” as therein defined is relative. What amounts to a safe place depends upon the facts and conditions of the particular case. Zehren v. F. W. Woolworth Co. (1960), 11 Wis. (2d) 539, 543, 105 N. W. (2d) 563. The owner or employer is required to keep his premises as safe as the nature thereof will reasonably permit, but he is not an insurer of the premises. Powless v. Milwaukee County (1959), 6 Wis. (2d) 78, 94 N. W. (2d) 187.

Appellant relies on two cases in support of his argument —Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 253 N. W. 579, and Tomlin v. Chicago, M., St. P. & P. R. Co. (1936), 220 Wis. 325, 265 N. W. 72. In the Neitzke Case, the safe-place statute was applied where employees of an independent contractor were working high above the ground on a smokestack, and came into contact with uncovered choke coils carrying over 2,000 volts of electricity. The court held that the choke coils became a “dangerous instrumentality” when the construction of the smokestack made contact with the coils likely. The differences between exposed high-voltage coils, and beams protruding from a factory or warehouse wall are obvious, and serve to distinguish the Neitzke Case from the instant action.

In the Tomlin Case, the plaintiff was injured when he walked around a corner in the defendant factory, and bumped his head on a steel shelf supporting a fire extinguisher. The shelf was approximately five feet, six inches above the floor level. This court affirmed a judgment entered in favor of the plaintiff. The Tomlin Case, however, is replete with testimony as to the ease with which the shelf could have been placed in a safer position, and the ease with which the corners of the steel shelf could have been rounded off or padded, thus doing away with the danger. In the instant action the record is barren of any such evidence.

The mere fact that there were eight beams protruding from the wall does not constitute a violation of the safe-place statute. The statute does not guarantee safety; all that is demanded is adherence to the rule of reason. Hipke v. Industrial Comm. (1952), 261 Wis. 226, 233, 52 N. W. (2d) 401. It is difficult to conceive any structure, safe as it may be considered to be, which could not be made more safe by some means or other. To hold that this assumption requires the conclusion that there has been a violation of the safe-place statute would be to make the owner or employer an insurer. Whatever danger there may have been because of the position of the protruding beams, such danger was not due to any unsoundness of the structure. Providing a device which might make the area safe for Paaske was not the duty of the defendant as owner of the building, but rather the duty of the immediate employer. See Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis. (2d) 594, 603, 106 N. W. (2d) 269.

We determine under the rules set forth above that there was no violation of the safe-place statute, and that the building was as safe as the nature of the premises would permit. It follows that the trial court did not err in directing a verdict for the defendant, for the evidence — even when viewed in the light most favorable to the appellant Paaske— is so clear and convincing as to reasonably permit unbiased and impartial minds to come to but one conclusion. Davies v. J. D. Wilson Co. (1957), 1 Wis. (2d) 443, 448, 85 N. W. (2d) 459; Bruno v. Golden Bell Dairy (1961), 15 Wis. (2d) 106, 109, 112 N. W. (2d) 199. The judgment and order of the trial court are affirmed.

By the Court. — Judgment and order affirmed.


author: Wilkie, J. Per Curiam

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

      June 3

    June 30, 1964.

      For the plaintiff in error there was a brief by Gerald Powers, attorney, and Sherwood Slate of counsel, both of Milwaukee, and oral argument by Mr. Powers.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, William J. McCauley, district attorney of Milwaukee county, and Richard Surges, assistant district attorney.

       Motion for rehearing denied, without costs, on November 12, 1964.

   Wilkie, J.

Four issues are raised on this review: 1. Is sec. 161.02 (3), Stats., unconstitutional in that it imposes cruel and unusual punishment in making it a crime for a person to take or use narcotics not in pursuance to a prescription for permitted use ?

2. Were the items of physical evidence improperly admitted against Browne because they were obtained as a result of an illegal search and seizure, the illegality of the search in turn being a result of an illegal arrest ?

3. Were Browne’s admissions improperly admitted into evidence against him ?

4. Was the trial court’s refusal of Browne’s request to represent himself a per se denial of a state constitutional right, guaranteed by sec. 7, art. I, Wisconsin constitution?

Constitutionality of Criminal Conviction for Use of Unprescribed Narcotic Drugs.

Sec. 161.02 (3), Stats., establishes three offenses involving the use of narcotics. It provides that no person shall take or use narcotic drugs (1) “habitually” or (2) “excessively” or (3) “except in pursuance to a prescription for permitted use as prescribed ...” The latter offense embraces a single instance of use and it was with this offense that Browne was charged.

The defendant contends that to make a crime of such use of unprescribed narcotic drugs by a person who is addicted to the use of narcotics constitutes cruel and unusual punishment in violation of substantive due process within the meaning of the Fourteenth amendment of the United States constitution. He relies upon Robinson v. California as the sole support for his argument.

Robinson is clearly distinguishable. The California statute that was held unconstitutional made it a crime to be a drug addict. Robinson came to California from Oregon and was charged with the status crime of being addicted to the use of narcotics. He was not charged with, nor was there any evidence offered of any particular incident of use of drugs either in California or otherwise. The United States -supreme court, in reversing a judgment of conviction, stated, at page 666:

“This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.”

Robinson does not invalidate any state statute, such as sec. 161.02 (3), Stats., that makes it a crime for a person, whether an addict or not, to take and use narcotic drugs without a legal prescription. In the case at bar Browne was not charged with being an addict but with a specific act of taking and using drugs not pursuant to a prescription.

We must conclude that there is no merit to the defendant’s contention that the statute is unconstitutional.

Search and Seizure.

Whether the state police had probable cause to arrest a defendant and search him and his premises pursuant to that arrest, is a matter of federal constitutional law. “Probable cause” to arrest is a requirement of the Fourth amendment of the United States constitution, binding against the states through the Fourteenth amendment. If an arrest is invalid, a search incidental to that arrest is also improper and if evidence obtained by a search incidental to an illegal arrest is admitted into evidence and has a prejudicial effect upon the defendant’s case, then Fourteenth amendment due process requires that a subsequent conviction must be reversed. Conversely, if an arrest is valid, a search incidental to that arrest is proper and evidence obtained in that search may be received in evidence.

Our first attention must be directed to the federal constitutional law as to the legality of the arrest. Since sec. 11, art. I of the Wisconsin constitution is substantially like the Fourth amendment of the United States constitution, we have held that the standards and principles surrounding the Fourth amendment are generally applicable to the construction of sec. 11, art. I, and that a finding of probable cause under federal standards will normally result in a finding of probable cause under state standards.

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. While the standard is objective (good-faith belief by the officer is not sufficient), it is not necessary that the evidence be sufficient to prove ultimate guilt beyond a reasonable doubt, or even that it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility. Moreover, the belief may be predicated in part upon hearsay information.

Assuming a valid arrest predicated upon probable cause (with or without an arrest warrant), the police may, without a search warrant, conduct a search of the person in order to protect themselves, and they may also search premises immediately under his control if there is also probable cause to believe the search will reveal evidence and instrumentalities of the crime for which the arrest was made. In Harris, the defendant was arrested on a check-forgery charge. It was reasonable under the circumstances to believe that documentary instrumentalities of the crime were present in his apartment. That a search of the four-room apartment revealed forged draft cards, the offense for which he was ultimately convicted, did not alter the legality of such search, given the legality of the arrest and the probability of discovering instrumentalities of check forgery at the time of arrest. In Rabinowits the defendant was arrested for forgery of stamps. Under the circumstances, it was probable that instrumentalities of the crime were in his office, the site of the arrest. A search of the office revealed such stamps, and was held to be a legal search pursuant to a valid arrest. In Abel the defendant was arrested pursuant to an administrative warrant, as a deportable alien. A search of the premises for proof of alien status was held to be a reasonable search, pursuant to a valid arrest.

To be distinguished from these circumstances is the case in which a policeman validly arrests a person for vagrancy, takes him into custody, and then sometime later searches his impounded automobile. Under these circumstances, the United States supreme court has held that the search, even though following upon a valid arrest, was too remote in time and place to be deemed reasonably incidental to such arrest. Moreover, such a search of an automobile is not likely to reveal evidence of the status crime of vagrancy.

We now apply these principles to the case at hand. When the vice-squad officers observed Browne seize a hypodermic needle and syringe lying next to him on the bed and throw the paraphernalia on the floor, this observation, coupled with their knowledge of his prior drug offenses, gave them probable cause to believe that he was violating sec. 161.02 (3), Stats. From their experience as vice-squad officers, these men could reasonably conclude that possession of this paraphernalia was correlated with an illegal use of drugs. Sec. 161.02 (3) provides, in part, that possession of a “hypodermic syringe or needle . . . shall be prima facie evidence of the unlawful use of such drugs.” If possession of such instrumentality is legally sufficient evidence of guilt, a jortiori, the officers had “probable cause” to arrest because “probable cause” denotes a lesser quantum of evidence than legally sufficient evidence to convict.

Under these circumstances “probable cause to arrest” also supports a determination of probable cause to believe that evidence and instrumentalities of the crime are within the immediate control of the person arrested. General police experience reveals that most illegal users of narcotics maintain either the drugs or the instrumentalities in use in their rooms, apartments, and homes. Therefore, a search pursuant to a valid arrest under these circumstances was reasonable.

To make the arrest valid and the search incidental to the arrest reasonable, it is also necessary to determine whether there was any violation of constitutional rights on the part of the police in entering the building and proceeding to the upstairs kitchen. To say that as long as probable cause appears at any time during the course of the police conduct the arrest is valid would be to permit the police to enter every home in the community as a part of a general dragnet operation and make observations, and then if such observations yielded sufficient evidence of probable cause, execute “valid” arrests. This would defeat the values which the Fourth amendment and sec. 11, art. I, seek to protect.

At the moment the officers entered the kitchen they lacked probable cause to arrest. To arrest for probable cause, upon an informer’s tip alone, requires that the informant be known to the police, and that the police from their own direct knowledge know the informant to be reliable. Moreover, even if the police know from personal knowledge that the alleged offender has committed similar crimes in the past, they must still be able to attest from their own knowledge to the informer’s reliability. These officers, although they previously knew of Browne’s use of narcotics, did not even know the identity of the informant and certainly could not attest to his reliability.

But because the officers lacked probable cause to arrest, it does not follow that they were not legally permitted to be in the kitchen.

Certainly the police may investigate claims of crime on evidence not sufficient to justify an arrest. The anonymous tip, coupled with their previous knowledge of Browne’s narcotics offenses, justified their trip to his house to investigate for the purpose of gathering evidence sufficient to arrest. When they followed Browne’s fellow roomer who conducted them from the front door to the kitchen they were continuing to make a reasonable investigation of the crime concerning which they still had a reasonably aroused suspicion. Although both the Fourth amendment and sec. 11, art. I, protect against police invasion, of personal privacy, police officers should be permitted to conduct a reasonable investigation when their suspicion has been reasonably aroused. Whether an inquiry is considered reasonable must depend upon the facts in each case and must turn on the application of what is essentially an indeterminate and flexible test.

We do not think it is helpful in making a determination as to the validity of the investigation to consider whether or not the defendant “consented” (actual or implied) to his landlord or fellow roomer to let the police in and to guide them to the threshold of his second-floor room. Since criminal convictions require substantial evidence, the police must be given reasonable power to gather probative evidence. These two values conflict (personal privacy and the need for probative evidence), and in our system of government the difficult task of striking a satisfactory balance falls upon courts. Do trips through the technicalities of the law of trespass aid in the balancing task? The United States supreme court has recognized that they do not. In Jones v. United States, supra, the court in determining the scope of standing to raise Fourth amendment issues, in its search for reasoned standards, was “persuaded . . . that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, . . . has been shaped by distinctions whose validity is largely historical.” Very recently, in determining whether a search of defendant’s hotel room, without a search or arrest warrant, was reasonable because a desk clerk gave the officers authority to enter the room, the court stated:

“Nor is there any substance to the claim that the search was reasonable because the police, relying upon the night clerk’s expressions of consent, had a reasonable basis for the belief that the clerk had authority to consent to the search. Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ”

Thus, whether or not a search or investigation is reasonable is not a matter for the application of the comparatively rigid rules of tort and property law, but is rather a matter of an inquiry as to whether the search or investigation is constitutionally reasonable under the circumstances. If police conduct is not considered unreasonable in the circumstances, it is not made unreasonable if it is deemed to have involved a civil trespass.

In the case at bar, and considering the nature of the crime involved, the police conduct in presenting themselves at the rooming house after receiving the phone call, in identifying themselves as police officers, in being ushered by the fellow roomer to the kitchen, in asking as to the whereabouts of Browne, and in viewing him through the open door, constituted a reasonable investigation on the part of the police officers that warranted any invasion of privacy Browne suffered from having the officers brought to the threshold of his room without his affirmative consent.

In conclusion, because the police conduct in conducting an investigation seeking evidence to establish “probable cause” was on balance reasonable, and because the investigation did produce probable cause to believe Browne was violating sec. 161.02 (3), Stats., before the arrest, such arrest was validly executed. Because the search pursuant to the arrest was reasonable under the circumstances of this case, the physical evidence seized pursuant to the search was properly admitted into evidence against Browne.

Browne’s Admissions.

In Wong Sun v. United States the United States supreme court held that if a person’s arrest was constitutionally invalid, any prejudicial admissions made after arrest and before arraignment must be excluded from evidence as a matter of due process. Because Browne’s arrest was constitutionally valid, his admissions were properly admitted into evidence.

Refusal to Permit Browne to Represent Himself.

Defendant had three attorneys who represented him in tandem at different stages in the proceedings below, from the time of his arraignment (June 18, 1962) to the time of sentencing (March 14, 1963). He often quarreled with his counsel in open court and repeatedly expressed dissatisfaction with each. Although represented by counsel, on several occasions he engaged in running colloquies with the trial court.

At the beginning of the actual trial Browne requested that he be allowed to represent himself and counsel called the court’s attention to the fact that Browne wanted to terminate his services. The trial court then stated that the attorney had been appointed on the specific request of Browne, that the court was satisfied that counsel was prepared, and that the appointment stood.

Defendant contends that the trial court’s refusal of Browne’s request to represent himself was a per se denial of a state constitutional right, guaranteed by sec. 7, art. I, Wisconsin constitution.

True, in Dietz v. State this court held that the right to counsel, under sec. 7, art. I of the Wisconsin constitution included the flat right “to be heard ‘by himself’ as well as by counsel.” Therefore, the court concluded that if a person was “mentally competent,” he must be permitted to represent himself in a criminal prosecution, if that is his desire.

However, this general principle must be modified in the light of subsequent development of constitutional doctrine, state and federal, relating to the right to counsel. Presently, an indigent defendant has a flat state and federal constitutional right to state-appointed-and-financed counsel in all prosecutions for serious offenses in which a substantial penalty might be imposed.

Moreover, a body of constitutional law, both state and federal, has developed to determine whether or not a defendant has intelligently and understanding^ waived his right to counsel. This question is an objective determination of law made by the court based upon an evaluation of three general factors: (1) The ability of the defendant to appreciate his circumstances, (2) the complexity of the charges he faces, and (3) the role of the trial court in apprising the defendant of his circumstances.

Because of the evolution of the law as to waiver, some modification of Dieta is required. In Diets, the court did not focus upon the waiver problem. Because Dietz was, in fact, permitted to represent himself, the only issue as the court viewed the problem was whether or not he conducted a competent defense.

Here, where the court denied a defendant’s request to represent himself, the relevancy of the waiver doctrine to the Dietz principle is seen more clearly. The fundamental purpose of the right to counsel is to insure reliable guilt determination. It is clear that as a general proposition, a defendant’s position is more secure if represented by counsel. But, due process also requires that throughout the criminal process the state must treat a defendant as a person possessing human dignity (after all it is the defendant who is going to suffer if he makes the wrong decision and forgoes a lawyer) and, in most instances, a defendant would be denied this treatment if counsel were imposed upon him against his wishes.

However, in approaching the problem of waiver, it is highly important to consider that many persons lack the capacity to evaluate intelligently their circumstances during the course of a criminal prosecution.

In determining whether a defendant who was represented by counsel appointed by the trial court on the specific request of the defendant was denied his constitutional right to act as his own counsel, the critical question is not whether, as a matter of law, he lacked the capacity intelligently to waive his counsel. Rather, the critical question is whether, under the circumstances, the trial court had reasonable grounds for a good-faith belief that the defendant lacked the capacity to appreciate his circumstances and thus to conduct his own defense and to waive intelligently his right to counsel. The determination of intelligent waiver is a matter of law (or constitutional fact) which this court may independently determine, giving very careful consideration to the determinations made by the trial court, and applying the legal standards outlined above. Where the trial court, as in the case at bar, concludes that the defendant lacked the capacity to intelligently waive, then it would be unreasonable to reverse the conviction solely because this court determined that the defendant possessed the capacity to waive.

In the instant case, the trial court had grounds for a “good-faith” belief that Browne lacked the capacity to intelligently waive:

(1) After his initial counsel had moved to suppress admission of physical evidence on constitutional grounds, and the motion had been denied, Browne wanted him dismissed because he was “incompetent.” Surely a motion to suppress under the circumstances of this case was an intelligent strategy. The fact that Browne deemed his attorney “incompetent” after this move is evidence that Browne did not appreciate the realities of a criminal prosecution.

For the plaintiff in error there was a brief by Jackson M. Bruce, Jr., and Norman L. Winn of counsel, both of Milwaukee.

For the defendant in error there was a brief by George Thompson, attorney general, William A. Plats and Betty R. Brown, assistant attorneys general.

(2) Later, Browne demanded that his second counsel be dismissed because he did not know the chemical composition of paregoric, or whether paregoric was a narcotic drug. Surely, in the posture of this case, whether or not paregoric was a narcotic drug was not a meaningful issue. Ch. 161, Stats., specifically labels paregoric as a narcotic drug. Browne’s interrogation of his counsel on this issue is evidence of a lack of appreciation of the issues in the litigation.

(3) When requesting dismissal of his third counsel, who tried the case, Browne argued that he wanted to introduce certain lines of evidence, but his counsel refused. However, this evidence went to the legality of the arrest, a matter already resolved and not relevant to the issues at the trial to the jury.

We conclude that the trial court had reasonable grounds for a good-faith belief that Browne lacked the capacity to appreciate his circumstances, and properly denied Browne’s request to represent himself.

By the Court. — Judgment affirmed.

Dieterich, J., took no part.

On motion for rehearing:

The following opinion was filed November 12, 1964.

Per Curiam

(on motion for rehearing). Subsequent to our original opinion herein defendant Browne moved for rehearing and different counsel were appointed by this court to represent him with respect to such motion. We consider seriatim the issues raised in the brief filed in support of this motion for rehearing:

Is Paregoric a Narcotic Drug?

For the first time in this criminal prosecution the claim is advanced that paregoric is not a narcotic drug within the meaning of sec. 161.02 (3), Stats., under which defendant was convicted. This statute provides in part: “No person shall take or use narcotic drugs habitually or excessively or except in pursuance to a prescription for permitted use as prescribed in this chapter.” Sec. 161.01 (14) defines narcotic drugs, as used in ch. 161, Stats., so as to include any compound containing opium. A licensed pharmacist testified that the component parts of paregoric are opium, alcohol, benzoic acid, and oil of anise.

Sec. 161.06 (1) (a) and (b), Stats., authorizes an apothecary to dispense narcotic drugs upon prescription under certain restrictions. Sub. (c) of sec. 161.06 (1) then provides, “The provisions of this subsection shall apply to paregoric.” Defendant bases his contention that paregoric is not a narcotic drug within the meaning of sec. 161.02 (3), upon this latter specific mention of paregoric in the subsection relating to apothecaries filling prescriptions for narcotic drugs, and argues that the canon of statutory construction, expressio unius est exclusio alterius, applies.

We reject this contention of defendant since we are satisfied that the specific provision of sec. 161.06 (1) (c). Stats., was inserted by the legislature for purposes of emphasis because paregoric is frequently among the exempt narcotic preparations listed in the statutes of other states and in the Harrison Narcotics Act. It serves as an express warning to pharmacists that they may only dispense paregoric pursuant to prescription. The definition which controls is that of sec. 161.01 (14), and that clearly includes paregoric.

Instruction With Respect to Hypodermic Needle.

Also for the first time on this rehearing defendant complains of the following instruction included in the trial court’s charge to the jury:

“Under the law applicable to this case, the conscious'possession of a hypodermic syringe or needle is prima facie evidence of the unlawful use of narcotic drugs.”

This instruction is predicated upon the second sentence of sec. 161.02 (3), Stats., which reads, “The unlawful possession of narcotic drugs by a person or of a hypodermic syringe or needle, except when possessed by a diabetic, shall be prima facie evidence of the unlawful use of such drugs.” Since statutes, if possible, must be given a reasonable meaning and not one which accomplishes an absurd result, we hold the word “unlawful” does not qualify the possession of a hypodermic syringe or needle. The only unlawful possession of such an instrument would be one obtained by theft, and clearly the legislature was not here concerned with stolen property.

Defendant attacks this statutory provision as being invalid on the ground that all statutory presumptions in criminal prosecutions have been held unconstitutional in Tot v. United States (1943), 319 U. S. 463, 63 Sup. Ct. 1241, 87 L. Ed. 1519, and Barrett v. United States (5th Cir. 1963), 322 Fed. (2d) 292. The state counters with the argument that only those statutory presumptions are invalid where there is no rational connection between the fact proved and the ultimate fact presumed. Here there clearly is a rational connection between possession of a hypodermic syringe or needle by a nondiabetic and the unlawful use of narcotic drugs.

We find it unnecessary to pass on the constitutionality of this statutory provision. Even if it were error for the trial court to have given the instruction predicated upon the statute, we determine it to have been nonprejudicial. The un-contradicted testimony that there were recent hypodermic needle marks on defendant’s arms; his admissions that he was taking paregoric; and the manner in which he admitted he prepared it for injection by use of heat so as to burn off the alcohol and secure a higher concentration of opium; render it highly unlikely that this instruction had any material bearing on the jury finding defendant guilty.

Another reason for our determination not to reverse because of the giving of the quoted instruction is that no motion for new trial was made in this case. Error cannot be predicated upon an instruction to the jury without first moving for a new trial on this ground in the trial court. Ferry v. State (1954), 266 Wis. 508, 510, 63 N. W. (2d) 741; State v. Biller (1952), 262 Wis. 472, 482, 55 N. W. (2d) 414.

Refusal of Trial Court to Permit Defendant to Waive Counsel.

Defendant again raises the issue that the trial court denied him the constitutional right to try his own case without counsel. This issue was exhaustively argued by the parties and thoroughly considered by our court at the time we rendered our original opinion. Our reasons for rejecting this contention were fully set forth therein, and we deem it unnecessary to add to what was there stated.

Defendant’s Admissions Before Trial.

In addition to the arguments originally advanced before this court in support of the contention that defendant’s admissions before trial to police officers should have been excluded, defendant now relies upon Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977. It is contended that this case requires that any such admission be excluded from evidence in the absence of (1) either representation by counsel before making such admissions or the intelligent waiver of counsel; and (2) the police officers informing defendant of his constitutional right to remain silent and not say anything in response to questions. A careful reading of Escobedo convinces us that it does not lay down any such sweeping strictures. At the beginning of the Escobedo majority opinion, Mr. Justice Goldberg stated the issue to be decided (378 U. S., at p. 479) :

“The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U. S. 335, 342, and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.” (Emphasis supplied.)

The pertinent circumstances in that case were that during the interrogation after Escobedo’s arrest he repeatedly asked to speak to his lawyer and such request was denied; his lawyer came to the police station and asked the officer in charge for permission to see Escobedo; this also was denied; and the police never advised Escobedo of his constitutional right to remain silent. The only similarity between those facts and the facts present here is that defendant Browne was not advised of his constitutional right to remain silent. He made no request to consult with an attorney nor did any attorney seek to confer with him. We deem that this fully distinguishes Escobedo and that it does not control the result here.

With respect to the failure to advise defendant of his constitutional right to remain silent, Holt v. State (1962), 17 Wis. (2d) 468, 479, 117 N. W. (2d) 626, held that there is no hard-and-fast rule that an accused must be informed of his constitutional right not to incriminate himself as a condition precedent to admission into evidence of any admissions or confessions made to the police. The most that Escobedo holds in this respect is that the failure to so inform a criminal suspect under arrest, when coupled with other circumstances, may be sufficient to require exclusion of any admission made by him. We find here a total lack of any other circumstances which require' exclusion of the instant admissions.

New Trial in the Interest of Justice.

As a final argument defendant requests that we order a new trial in the interest of justice. We are not convinced that the conviction of defendant probably resulted in a miscarriage of justice. We decline, therefore, to order a new trial on that ground.

The motion for rehearing is denied without costs.

       (1962), 370 U. S. 660, 82 Sup. Ct. 1417, 8 L. Ed. (2d) 758.

        Giordenello v. United States (1958), 357 U. S. 480, 485, 78 Sup. Ct. 1245, 2 L. Ed. (2d) 1503; Ker v. California (1963), 374 U. S. 23, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726.

        Mapp v. Ohio (1961), 367 U. S. 643, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081; Fahy v. Connecticut (1963), 375 U. S. 85, 84 Sup. Ct. 229, 11 L. Ed. (2d) 171.

         State v. Cox (1950), 258 Wis. 162, 45 N. W. (2d) 100; State v. Phillips (1952), 262 Wis. 303, 55 N. W. (2d) 384. For an example of police conduct permitted by the Fourth and Fourteenth amendments, U. S. Const., but prohibited by the state, compare State v. Kroening (1956), 274 Wis. 266, 79 N. W. (2d) 810, 80 N. W. (2d) 816, with Breithaupt v. Abram (1957), 352 U. S. 432, 77 Sup. Ct. 408, 1 L. Ed. (2d) 448.

       “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. See also Carroll v. United States (1925), 267 U. S. 132, 45 Sup. Ct. 280, 69 L. Ed. 543.

         Draper v. United States (1959), 358 U. S. 307, 79 Sup. Ct. 329, 3 L. Ed. (2d) 327.

       Ibid.

        Harris v. United States (1947), 331 U. S. 145, 67 Sup. Ct. 1098, 91 L. Ed. 1399; Preston v. United States (1964), 376 U. S. 364, 84 Sup. Ct. 881, 11 L. Ed. (2d) 777; Stoner v. California (1964), 376 U. S. 483, 84 Sup. Ct. 889, 11 L. Ed. (2d) 856.

        Harris v. United States, supra; United States v. Rabinowitz (1950), 339 U. S. 56, 70 Sup. Ct. 430, 94 L. Ed. 653; Abel v. United States (1960), 362 U. S. 217, 80 Sup. Ct. 683, 4 L. Ed. (2d) 668; Preston v. United States, supra; Stoner v. California, supra.

        Preston v. United States, supra.

        Harris v. United States, supra; United States v. Rabinowitz, supra; Abel v. United States, supra.

        Draper v. United States, supra.

        Jones v. United States (1960), 362 U. S. 257, 80 Sup. Ct. 725, 4 L. Ed. (2d) 697.

       362 U. S. at page 266.

        Stoner v. California, supra, at page 488.

       Traynor, Mapp v. Ohio at Large in the Fifty States, Duke Law Journal (1962), 319, 336, 337.

       (1963), 371 U. S. 471, 83 Sup. Ct. 407, 9 L. Ed. (2d) 441.

       (1912), 149 Wis. 462, 479, 136 N. W. 166.

        State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N. W. (2d) 540; State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91; Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799.

        Moore v. Michigan (1957), 355 U. S. 155, 78 Sup. Ct. 191, 2 L. Ed. (2d) 167. A seventeen-year-old boy, of below-average intelligence, could not appreciate significance of first-degree murder charge. See also State ex rel. Burnett v. Burke, supra. Defendant’s I. Q. was between 75 and 91.

        Von Moltke v. Gillies (1948), 332 U. S. 708, 68 Sup. Ct. 316, 92 L. Ed. 309; an educated woman held not to have intelligently waived counsel in relation to a charge of conspiracy to commit espionage in circumstances where her legal relationship to active conspirators was a matter requiring technical knowledge of the law of conspiracy.

        Von Moltke v. Gillies, supra; State ex rel. Burnett v. Burke, supra. To aid trial courts in determining whether or not a defendant has intelligently waived counsel, this court has set forth a series of inquiries to be made of the defendant by the trial court, and outlined information that the court should supply to the defendant before concluding that he has waived, and before accepting a guilty plea from an unrepresented defendant. See State ex rel. Burnett v. Burke, supra, at page 494.

        Moore v. Michigan, supra; State ex rel. Burnett v. Burke, supra.

       Sec. 161.06 (1) (c), Stats.


author: Gordon, J.

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

      June 3

    June 30, 1964.

      For the plaintiff in error there was a brief and oral argument by Michael J. Barron of Milwaukee.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, William J. McCauley, district attorney of Milwaukee county, and Aladin A. De Brosso, deputy district attorney.
   Gordon, J.

The state urges that the instant writ must be dismissed for the reason that there were two separate judgments of conviction and there is only one writ of error seeking a review of both of said judgments. Montgomery v. American Central Ins. Co. (1900), 106 Wis. 543, 545, 82 N. W. 532. We consider that this defect is cured in the instant case by sec. 269.51 (1), Stats., which provides that when an appeal is attempted and a return is duly made, the respondent who has not moved to dismiss the appeal shall be deemed to have waived all objections to the regularity of the appeal. Ford v. Rothwell (1964), 23 Wis. (2d) 80, 83, 126 N. W. (2d) 489; Fox v. Koehnig (1926), 190 Wis. 528, 530, 209 N. W. 708. Since the state did not make a timely objection nor bring a motion to dismiss, we conclude that under sec. 269.51 (1) the irregularity of attempting to have two judgments reviewed via one writ has been waived.

The gravamen of Ronzani’s requested review is that a new trial should be granted in the interests of justice because the accused entered ill-advised pleas of guilty. It is contended that Ronzani had perfected a withdrawal before the commission of the crimes and also that he signed a statement at the police station which was not the product of his free will. Ronzani had the benefit of legal counsel and entered guilty pleas. The trial court made an adequate record before adjudging the accused to be guilty upon his pleas. Pulaski v. State (1964), 23 Wis. (2d) 138, 144, 126 N. W. (2d) 625.

The record before us does not disclose such probability of the miscarriage of justice to warrant our use of the discretionary power of sec. 251.09, Stats. See Ferry v. State (1954), 266 Wis. 508, 511, 512, 63 N. W. (2d) 741.

Although the issue is not urged in Ronzani’s brief, the state has brought to our attention the fact that there is an overlapping in connection with the two charges of which Ronzani was convicted and sentenced. Ronzani was convicted of third-degree murder, also known as felony murder, under sec. 940.03, Stats. He was also convicted of the underlying felony of attempted armed robbery under secs. 943.32 and 939.32. There is no question but that Ronzani was adjudged guilty of both a felony and a murder which occurred in the course of the perpetration of such felony.

The sentences for the two respective crimes were made to run consecutively. The trial court did not assess the maximum sentence for the felony murder but instead actually sentenced Ronzani to fifteen years for such crime. The maximum punishment for the attempted armed robbery is fifteen years, and the trial court ordered a ten-year sentence in connection with such felony.

A fundamental error occurred when Ronzani was convicted on both charges and sentenced thereunder. In State v. Carlson (1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354, this court pointed out that it is proper when a death occurs during the course of a felony to charge the accused with only third-degree murder. However, a separate verdict regarding the underlying felony is to be submitted to the jury, because such underlying felony is an included crime within the meaning of sec. 939.66 (1), Stats. In the Carlson Case, this court said, at page 609:

“But the jury should be instructed to sign but one verdict, so that if they found the defendant' guilty of third-degree murder they would make no finding with respect to the separate form of verdict of [the underlying felony].”

Unlike the Carlson Case, there is distinct prejudice to the accused in this case because of the fact that here the sentences for the separate crimes were made to run consecutively. It follows that the conviction and sentence for the attempted armed robbery must be set aside.

We find no irregularity, however, in the conviction for third-degree murder. In our opinion, Ronzani was “duly convicted” of such crime upon his plea of guilty thereto. Sec. 939.73, Stats. The sentence for such conviction should, however, be set aside and the cause remanded to the trial court for the purpose of resentencing as to the crime of third-degree murder. We have determined to remand for resentencing because the original sentence of Ronzani for third-degree murder may reflect the trial court’s erroneous conclusion that a consecutive sentence could also be given for the attempted armed robbery. In connection with such resentencing, the trial court should give consideration to the time which Ronzani has already served. This is consistent with the spirit of ch. 22, Laws of 1963, amending sec. 958.06.

By the Court.- — Judgment upon conviction of attempted armed robbery and the sentence based thereon are vacated. Judgment upon conviction for third-degree murder is affirmed, but the sentence of the circuit court for Milwaukee county upon the conviction for third-degree murder is vacated. The superintendent of the Wisconsin state reformatory, Green Bay, is ordered to remand the custody of Robert Reno Ronzani to the sheriff of Milwaukee county pending his resentence by the circuit court for Milwaukee county upon his conviction for third-degree murder.


text:
    City of Racine, Respondent, v. Unified School District No. 1 of City of Racine, Village of Sturtevant, Village of North Bay, Village of Wind Point, Village of Elmwood Park, Town of Caledonia, and Town of Mt. Pleasant, Appellant.

      June 4

    June 30, 1964.

      For the appellant there were briefs by La France, Thompson, Greenquist, Evans & Dye of Racine, and oral argument by Kenneth L. Greenquist.

    For the respondent there was a brief and oral argument by Jack Harvey, city attorney.
   Gordon, J.

On the surface, the question is who is entitled to the tuition money. The underlying question is whether “school property” in sec. 40.807 (4a) (b), Stats., refers to all the assets which are more fully delineated in par. (a) thereof. The theory of the plaintiff is that during the 1960-1961 school year the schools in the city were merely an arm of the city government and that tuition fees earned during this period constituted revenues which belong to the city of Racine. The theory of the defendant district, on the other hand, is that by sec. 40.807 (4a) (a) and (b) the right to the tuition passed to the defendant district pursuant to the sale agreement between the parties.

The trial court concluded that the words “school property” which appear in sec. 40.807 (4a) (b), Stats., have a restricted meaning and are not so broad as the enumerated items described in the preceding paragraph of the same statute. The latter paragraph describes the transfer to the unified school district of the following: “All property, assets, claims, contracts, liabilities and obligations.”

The use of the words “school property” in par. (b) and the further limitation therein that such property be “situated in the unified school district at the time of its creation” tend to support the city’s argument that the legislature did not intend to compel the city to give up its claims to the tuition fees which had been collected for the prior school year.

The defendant district urges that there is a different and valid explanation for the legislature’s having used different terminology in the two paragraphs. According to the defendant, the term “school property” in par. (b) was used to reflect the difference between the types of pre-existing school districts. Under this view, a noncity school district was capable of transferring all its assets and liabilities, irrespective of the character thereof, to the unified school district, but a city which possessed assets and liabilities disassociated from the school system could not so transfer those assets or liabilities which were unrelated to the school operation.

The statute under consideration has not previously been construed by this court. A majority of the court concludes that the unified school district is entitled to the tuition fees. Sec. 40.807 (4a) (b), Stats., is construed by a majority of the members of this court as evidencing an intent by the legislature to include intangible school assets within the term “school property.” In accordance with this construction, the unified school district assumes the outstanding obligations of the city which were issued for school purposes in exchange for all the school assets, including the tuition fees.

Those members of this court who are in the minority in this case will perhaps find agreement with Jeremy Bentham, who wrote in A Fragment on Government (1891), p. 103:

. . it is never the Law itself that is in the wrong: it is always some wicked interpreter of the Law that has corrupted and abused it.”

By the Court. — Judgment reversed.

Fairchild, Hallows, and Wilkie, JJ., dissent.