author: Beilfuss, J. Wilkie, J.

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

      June 4

    June 25, 1965.

      For the plaintiff in error there was a brief and oral argument by Donald C. Haberman of Milwaukee.
    For the defendant in error there was a brief by Bronson C. La Follette, attorney general, Hugh R. O’Connell, district attorney of Milwaukee county, and Donald W. Steinmetz, first assistant district attorney, and oral argument by Aladin A. DeBrozzo, deputy district attorney.
   Beilfuss, J.

Defendant presents two issues on this appeal: (1) Did the trial court commit prejudicial error by not submitting verdicts and instructions on manslaughter and lesser degrees of homicide? And (2) did the trial court exceed its jurisdiction when it imposed the consecutive sentence ?

Defendant’s position is that the evidence warranted submission of a form of verdict and instruction on manslaughter.

Neither in the briefs nor at argument does he pursue the alleged error in failing to submit lesser degrees of homicide based upon recklessness and negligence. Clearly, defendant’s acts were not negligent nor reckless and the trial court’s refusal to submit this alternative to the jury was not error.

Sub. (1) of the manslaughter statute (sec. 940.05) provides that when one person causes the death of another, “Without intent to kill and while in the heat of passion,” he may be imprisoned not more than ten years.

Sec. 939.66 provides in part:

“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; or
“(2) A crime which is a less serious type of criminal homicide than the one charged.”

The rule is that there must be a reasonable ground for a conviction on the lesser charge and an acquittal of the greater charge before the trial court will be justified in submitting lesser degrees of homicide than that charged in the information. Brook v. State (1963), 21 Wis. (2d) 32, 40, 123 N. W. (2d) 535; State v. Hoyt (1964), 21 Wis. (2d) 284, 290, 128 N. W. (2d) 645; State v. Stortecky (1956), 273 Wis. 362, 369, 77 N. W. (2d) 721. If the evidence does warrant submission of lesser degrees of the offense, failure to do so “results in undeniable prejudice to defendant.” Brook v. State, supra, page 41.

The main thrust of defendant’s argument is that the standard to be applied is one which gives effect to the particular defendant’s state of mind. Defendant submits a standard somewhere between an “objective” and “subjective.” His authority, in general, may be found in the opinion of Mr. Justice Wilkie, concurring in State v. Hoyt, supra, page 298 et seq.

The argument is that we must consider defendant’s limited education, his considerable drinking, and his outrage in having been tricked or duped by Ryan and Mrs. Milligan. The totality of the day, says defendant, shows that he was laboring under such a mental derangement as to have justified an instruction on manslaughter.

In State v. Hoyt, supra, the court firmly committed itself to the long-standing rule which employs the objective standard. The majority opinion states, at page 291:

“ 'Thus, with respect to provocation, the test applied is not the subjective one of whether it was sufficient to produce in defendant such passion as to cause him to kill without intent to do so. Rather it is the objective one of whether the provocation would have caused such state of mind in persons ordinarily constituted.’ ” Citing Brook v. State, supra. See State v. Stortecky, supra.

Manslaughter has been defined as :

“That which will constitute ‘the heat of passion’ which will reduce what would otherwise be murder to manslaughter ‘is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.’ State v. Stortecky (1956), 273 Wis. 362, 372, 77 N. W. (2d) 721. It has been said that ‘ “the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.” ’ ” State v. Hoyt, supra, page 290.

Defendant was apparently disappointed over the evening events. The court must, however, decide whether defendant’s failure to illegally satisfy his passions in Lincoln Park and his discovery of having been “duped” could reasonably amount to sufficient provocation. It does not. Under the facts of this case, and in light of the illicit purposes of the evening, this court must rule that, “Such conduct [on the part of Ryan and Mrs. Milligan] does not constitute sufficient provocation to cause such heat of passion in persons ordinarily constituted as to cause them to kill without intent to do so. For this reason, the trial court did not commit prejudicial error in refusing to submit the lesser offense of manslaughter.” Brook v. State, supra, page 43.

From the moment defendant awoke on July 3d he accomplished nothing. His evening foray was manifestly asocial. Mrs. Milligan’s tricking him is not of such great moment as to cause raging anger in an ordinarily constituted man. The facts subsequent to the Lincoln Park fiasco do not permit an instruction on manslaughter. Defendant walked many blocks back to the Milligan home. He did not have to go there. During such walk an ordinarily constituted man should have regained his composure. He could have been somewhat piqued, but not senseless with anger. Defendant was the aggressor. How does one justify taking a loaded pistol to an amorous foray? How does one justify using a pistol to recover $10? There is simply too much deliberateness — meanness—leading up to the fatal shooting.

Defendant’s argument would protect asocial behavior. His reasoning would make successive crimes a defense to all such crimes.

The trial court’s instruction on self-defense amply covered the evidence presented by defendant. Sec. 939.48, Stats.

In our efforts to insure that those accused of crimes have the maximum protection of their rights, we must not lose sight of the fact that society is entitled to protection against rules which condone criminal violence.

Defendant claims that since the trial court, on February 8th, did not indicate whether the sentence imposed was concurrent or consecutive, it must be deemed concurrent with the sentence he was presently under.

The trial court expressly deferred execution of the sentence until February 10th with consent of counsel in defendant’s presence. He argues that the trial court may not impose sentence and then stay execution thereof.

The trial court was advised that defendant intended to change his not-guilty pleas on the two robbery charges to guilty. The court intended to consolidate all sentencing matters on February 10th. Execution was properly postponed. Further, what was said in State ex rel. Reynolds v. County Court (1960), 11 Wis. (2d) 512, 105 N. W. (2d) 812, is apposite. In that case it was held that after sentence is imposed and the defendant received at the place of confinement, the trial court ceases to have jurisdiction to modify the sentence. Thus, it is said:

“. . . Wisconsin adheres to the common-law principle that a trial court has no power to revise its judgment and sentence in a criminal case after the expiration of the term or after the execution of the sentence has commenced.” (p. 515.)
“ ‘The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force.’ ” (p. 516.)

In State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 199, 190 N. W. 121, 191 N. W. 565, we stated:

“It is a rule of general application that a court has power to reconsider the judgment and sentence in a criminal case and to revise and correct it by modifying and even by increasing its severity if done during the term at which the judgment and sentence is pronounced and before the sentence has been executed or put into operation.”

Until execution (providing the term of court has not expired), the trial court had jurisdictional authority to determine whether the sentence should be concurrent or consecutive. Deferring execution or even imposition of the sentence in order to consolidate other matters before the court affecting the same defendant is not prohibited by the statutes, supra, footnote 3; nor does it appear to be an abuse of discretion in this case.

By the Court.- — Judgment affirmed.

Wilkie, J.

(concurring). Although I adhere to my views expressed in the concurring opinion in State v. Hoyt favoring the adoption of the Model Penal Code formulation as the test of provocation under sec. 940.05 (1), Stats., under the facts in this case, even if this different test were to be adopted, a manslaughter verdict should not have been submitted to the jury. Without needlessly repeating the pertinent facts leading up to the homicide as detailed in the majority opinion I would merely observe that, even under the alternative test, there was no reasonable ground for the trier of fact to conclude that the killing was “committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse,” where the reasonableness of such explanation or excuse is “determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” For these reasons I concur in the result reached by the majority.

       The manslaughter instruction requested by the defendant at the trial does not. set forth a subjective test — on the contrary it asks for the objective one in this language: “The provocation, in order to be sufficient in law, must be such as to produce naturally and instantly in the mind of a person ordinarily constituted, and which did produce in the mind of the defendant, the highest degree of exasperation, rage, anger, sudden resentment, or terror.” (Emphasis added.)

       Sec. 959.01 (2), Stats., provides: “Upon conviction the court has a duty to pronounce judgment and may adjourn the case from time to time for that purpose. In cases where s. 959.15 is applicable that section is controlling, hut in all other cases the court must either impose or withhold sentence and, if the defendant is not fined or imprisoned, he must be placed on probation as provided in ch. 57. Execution of sentence may not be stayed except as provided in ch. 57 and ss. 958.14 and 959.055 (1).” Sec. 959.07, provides in part: “The court may impose as many sentences as there are convictions and may provide that any such sentence shall commence at the expiration of any other sentence; and if the defendant is then serving a sentence, the present sentence may provide that it shall commence at the expiration of the previous sentence.”

       (1964), 21 Wis. (2d) 284, 298-304, 128 N. W. (2d) 645.

       Model Penal Code, p. 126, sec. 210.3 (1) (b) (Official Draft, 1962).

       Ibid.


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

text:
    State, Appellant, v. Waters, Respondent. Same, Appellant, v. Plichta, Respondent.

      June 4

    June 25, 1965.

      For the appellant 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 Roger P. Murphy, district attorney of Waukesha county.
    For the respondents there was a brief and oral argument by A. Warren Cahill of Waukesha, for Dalwyn W. Waters, and by Robert T. McGraw of Waukesha, for Paul John Plichta.
   Wilkie, J.

Three issues are presented on this appeal:

1. In reversing the order of the county court, did the circuit court exceed the proper scope of review ?

2. Did the evidence establish respondents’ guilt beyond a reasonable doubt ?

3. Did the trial court abuse its discretion in not ordering a new trial ?

Scope of Review Upon Appeal to Circuit Court.

This appeal presents the court with its first opportunity to consider sec. 957.255, Stats., which became effective in 1962, and which provides in part:

(2) If a new trial is denied an appeal may be taken therefrom to the circuit court within 15 days of the date of such denial, and said circuit court may review the order refusing a new trial and if reversed and the crime involved is a felony then the circuit court may order a new trial to be had in said circuit court, . . .”

The decision of the circuit court neither declares that the evidence was insufficient to prove respondents’ guilt beyond a reasonable doubt nor that the trial court abused its discretion in not granting a new trial. It appears from a reading of the decision that the circuit court reviewed the record and concluded, de novo, that “the facts are not as a matter of law sufficient to constitute the crime of rape.” Relying on In re Johnson the state contends that the circuit court erroneously reversed the trial court order denying new trials in that it improperly assumed a fact-finding function and improperly substituted its discretion for that of the trial court.

Johnson involved a construction of sec. 48.47, Stats., which permitted anyone aggrieved by an adjudication of the juvenile court to appeal to the circuit court of the same county. In concluding that the circuit court did not have the authority to review the record and come to an independent conclusion, this court said:

“Ordinarily, in Wisconsin, an appellate court does not have the power to decide questions of fact as an original proposition upon its review of the record.
“ Tn a trial to the court findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence.’ (Citing cases.) Swazee v. Lee (1951), 259 Wis. 136, 137, 47 N. W. (2d) 733.
“It has been held that upon appeal from the civil court to the circuit court for Milwaukee county, the findings have the same status as findings of the circuit court have upon appeal to the supreme court.
“ ‘The findings of that court have the same status upon appeal to the circuit court as findings of the circuit court on appeal to this court. They are not entitled to the same conclusiveness as a verdict of a jury, but will control unless against the clear preponderance of the evidence.’ (Citing cases.) Foster v. Bauer (1921), 173 Wis. 231, 234, 180 N. W. 817.”

By way of explanation the court stated:

“This limitation upon the scope of review must rest, in part at least, upon a recognition that the trier of the fact who saw and heard the witnesses is in a better position to determine credibility and weight of evidence than a court which merely reads the transcript of the testimony.”

Although the present case is a criminal matter, while Johnson was a civil case, the underlying rationale of Johnson in regard to scope of review should control if for no other reason than that the same problems of credibility exist.

In addition to incorrectly deciding the case as an original proposition based on a review of the trial record, the circuit court erred in ordering a new trial in the interests of justice. This is because under the provisions of sec. 957.255 (2), Stats., the circuit court does not have the authority, as does this court on review or the trial court after the trial, to order a new trial in the interests of justice. The authority in each instance is vested by precise statute and in the absence of express language in sec. 957.255 (2) authorizing the reviewing circuit court to order a new trial in the interests of justice, we find no such authority by implication. The trial court had refused to grant a new trial on that ground, and this was error only if there was an abuse of discretion. As the court said in In re Johnson:

“. . . it is the general rule that where discretion is conferred upon a trial court, the appellate court is not to reverse the trial court unless the record demonstrates that there has been an abuse of discretion. Mueller v. Michels (1924), 184 Wis. 324, 341, 197 N. W. 201, 199 N. W. 380. The appellate court is not authorized to substitute its discretion for that of the trial court.”

Thus, as pointed out in Johnson, the questions properly before the circuit court should be the same as are before this court at the present time, i.e., whether the evidence was sufficient to prove the defendants’ guilt beyond a reasonable doubt and whether the trial court abused its discretion in not granting a new trial.

Sufficiency of Evidence.

On a criminal appeal, the conviction will not be upset if the “ ‘evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.’ ” The same rule applies when the court is the trier of fact.

In Wisconsin, “[a]ny male who has sexual intercourse with a female he knows is not his wife, by force and against her will” is guilty of rape. The phrase “by force and against her will” is defined by statute as meaning “either that her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm.” Cases construing the “utmost resistance” requirement have been well digested in State v. Hoffman and a complete reiteration will serve no good purpose here. Suffice it to say that in general, resistance must persist until the act is consummated; voluntary submission' — no matter how reluctant — by a female who is still able to resist removes from the act an essential element of the crime. However, it is recognized that the term “utmost resistance” is a relative rather than a positive term, and what amounts to “utmost resistance” depends on the particular victim and the particular circumstances. Application of the general rule and the caveat was explained as follows :

“The impression left by the Brown Case unquestionably is that, unless the woman is beaten into unconsciousness or put into a state of mortal fear by threats, she must make resistance approaching the superhuman in its ferocity and effectiveness before the crime of rape can be committed. In the McLain Case there was an endeavor to make it clear that while the utmost resistance was required in all cases, this requirement was relative, not positive, and that what constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament of the victim, the relations of the parties, her state of health, her physical strength, her age, her experience, her courage, her nervous condition at the time, and perhaps other circumstances naturally affecting her powers of resistance. So reading the McLain Case, we do not think it can be said that there is any direct conflict between its doctrine and the doctrine of the Brown Case, but simply that it supplements the Brown Case and removes the erroneous idea which is likely to be gathered therefrom, namely, that the measure of resistance required is absolute and fixed in all cases and must be so great that, while it fails to defeat the purpose of the ravisher, the failure is only by the narrowest possible margin.”

The strict physical-resistance requirement is relaxed somewhat if it would be useless to resist. In Bohlmann v. State it was held:

“The power of resistance need not necessarily be overcome by superior physical force; if overcome by fraud or fear of serious personal injury, or if physical resistance becomes so useless as to warrant it ceasing upon that ground, there being no consent or submission in the sense of mental operation, the essential of the accomplishment of the act by force and against the will of the outraged party is fully satisfied.”

The pertinent facts are these: On Saturday, June 20, 1964, L-and S — ——, a friend who was staying with her while L-’s parents were out of town, went shopping in downtown Milwaukee. L-was sixteen years old at the time. At approximately 6:30 p. m., the respondents Waters and Plichta met the girls and asked them whether they wanted a ride. L-recognized respondent Waters, and the girls accepted. After driving around for a short time the respondents asked the girls if they would like to go to a party in Grant Park. L-- knew some of the people who were supposed to be there. The four ate at a restaurant and then picked up a third girl, C-. Around 8:30 the respondents dropped S- off at L-’s home, bought a six-pack of beer and some grape juice, and drove to Grant Park. There the couples necked and drank for about two hours although L-testified that she poured most of the two drinks she had out on the ground. They left Grant Park and drove around for awhile and took C — home. The time was between 1 and 2 :30 a. m. The respondents then told L-that they wished to stop at another girl’s house and began driving out of town. L-asked to be taken home and Waters, who was driving, told her to “shut up.” She was seated in the front seat between the respondents. Waters finally stopped the car on a country road in Waukesha county, some 30 to 40 miles from downtown Milwaukee.

After turning the motor and lights off, Waters asked L- if she would like to play a game. To no avail, L- again asked to be taken home. Plichta then inquired whether she had ever had intercourse before. L-answered “No.” L-testified:

“Then they held me and they took down my Bermudas and ripped where my zipper was. They took them down to about my knees and my panties, and they were holding me and Del [Waters] put his finger inside of me and said something, ‘No, I don’t think she has,’ and Paul [Plichta] said, ‘Let me see,’ and he put his finger inside of me. He said, ‘Maybe and maybe not.’ ”

Each respondent took one of L-’s arms and straddled one of her legs with his. Her testimony continues:

“I was screaming and crying and Del [Waters] slapped me in the mouth and held his hand over my mouth. Then Del took down his slacks and shorts and took my hand and wanted me to touch his privates and I made a fist and I said, ‘No,’ and I pulled away and he didn’t take my hand back. He let it go at that. Then we were arguing back and forth. I asked them why they were doing this to me, that I never did anything to them. They said they would let me go but they would take off all my clothes and I could go to someone’s house if I wanted to do this. Del asked me if they had to knock me out. I said, ‘Yes.’ We were arguing back and forth about this. I wanted to go home and they said, ‘No,’ not until I gave them what they wanted. They took my Bermudas and panties down all the way off my one leg. Then Paul went in the back seat and Del pushed me down so I was laying down in the seat. He laid on top of me and spread my legs apart with his legs and he had intercourse with me.”

When Waters was finished, Plichta told her to get in the back seat. She pulled her panties and Bermudas up and was able to get out of the car after starting to go over the back seat. All of this occurred sometime between 3 and 3 :45 a. m.

L-ran three blocks to a farmhouse but could not arouse the occupants. She continued down the road for another half a block to a lighted farmhouse where she told Mr. L-, the occupant, that she “was left out here by a couple [of] boys” and asked to use the phone. Mr. L-testified that she appeared “nervous” and “upset,” and although her hair was mussed up, there was no other evidence of physical violence. Mrs. L-either gave her a safety pin or a needle and thread to repair the torn zipper. L-telephoned S- and told her what had happened and then called her next-door neighbor. Sometime later the neighbor drove out to get L- and they went to the police department in Milwaukee and reported what had happened. On Tuesday L-was examined by the family doctor.

We cannot say that the evidence is insufficient as a matter of law to prove L-’s utmost resistance was overcome. L-was a sixteen-year-old girl who was taken to a remote spot in the country in the early morning hours by two men. She was slapped and muzzled when she began to scream and cry. At one point, although L-stated that they would have to knock her out to get what they wanted, combat with respondents was made impossible because the two men were holding her arms and legs and also because of the close confines of the front seat of the car. It is true that there is no evidence of any last-ditch resistance by L-just before the act was completed. According to the evidence, she did not bite, scratch, kick, strike out against her assailants with either leg or arm, and she did not come out of the affair with any telltale bruises or scratches. But under the circumstances, the trial court as the trier of fact, could reasonably have believed that at this juncture she was effectively intimidated or that any attempt to fight off Waters would have been futile because of Plichta’s continued presence. It is also significant that she made her escape at the first available opportunity. Respondents contend that she would have been free to get away while Plichta was climbing into the back seat. But this position presupposes that respondent Waters released her at the same time, and this is not supported by the testimony. Also at this time she was not in a favorable position to flee because her shorts and panties were half on and half off. Taken as a whole, the evidence is sufficient for the trier of fact to determine beyond a reasonable doubt that L-“used all the resistance in her power under the circumstances up to the time of the intercourse.”

In concluding that L-did not resist to her utmost, the circuit court stated:

“This Court is not impressed by the ‘tender age’ of the victim. She was old enough to be picked up; she was old enough to willingly imbibe of intoxicating beverages; she was old enough to occupy a blanket with one of the defendants for several hours at Grant Park, and to neck with one of the defendants.”

While we disapprove of her behavior we do not believe that such conduct is tantamount to consent to the acts of final gratification taken by the defendants on the country road in Waukesha county. One whose moral standards permit her to engage in the activities noted by the circuit court may nevertheless resist to the utmost when it comes to a forced act of intercourse.

Respondents argue that the fact that L-did not tell the first people she met, Mr. and Mrs. L-, what had happened to her emphasizes that she was not raped and that she gave her consent to the respondents’ actions. It is reasonable to conclude, however, that she was reluctant to tell perfect strangers that she had been raped. It was only a matter of minutes after the attack that L-told S-by phone — the first person that she talked to whom she actually knew — exactly what had happened. And her neighbor took her to the police station to report the incident immediately after driving to Mr. L-’s to take her home. At any rate, this is largely a matter of credibility, and the trial court, who heard all the witnesses, did not consider her failure to confide in Mr. and Mrs. L-to be unreasonable under the circumstances.

Abuse of Discretion.

Respondents contend that the state’s failure to call the doctor who examined L- as a witness amounted to prejudicial error because his testimony would have a bearing on the questions of penetration and chastity of the complaining witness. Although respondents do not say so specifically, it is apparent that they feel that the trial court abused its discretion in not granting a new trial on this ground.

But corroborating testimony in regard to penetration is not required. As this court said in Cleaveland v. State: “ ‘When one of understanding testifies to a completed act of .sexual intercourse it is sufficient proof of penetration.’ ” And while the want of chastity, even though no defense to the charge of rape, is relevant in that it bears on the question of consent, it cannot be said on the facts of the case that the failure to corroborate L-’s plea of virginity amounted to error so as to require a new trial on that ground.

By the Court. — Order reversed.

       Ch. 561, Laws of 1961,

       (1960), 9 Wis. (2d) 65, 100 N. W. (2d) 383.

       Id. at page 74.

       Id. at page 75.

       Sec. 251.09, Stats.

       Sec. 270.49, Stats.

         State v. Hibicke (1953), 263 Wis. 213, 56 N. W. (2d) 818; Kies v. Hopper (1945), 247 Wis. 208, 19 N. W. (2d) 167.

        Supra, footnote 2, at page 75.

       Also see Madison v. Geier (1965), 27 Wis. (2d) 687, 135 N. W. (2d) 761.

         State v. Stevens (1965), 26 Wis. (2d) 451, 463, 132 N. W. (2d) 502, and cases cited therein.

        State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379.

       Sec. 944.01 (1), Stats.

       Sec. 944.01 (2), Stats.

       (1938), 228 Wis. 235, 280 N. W. 357.

         State v. Hoffman, supra, footnote 14; Brown v. State (1906), 127 Wis. 193, 106 N. W. 536.

       See State v. Hoffman, supra, footnote 14; Devoy v. State (1904), 122 Wis. 148, 99 N. W. 455; O’Boyle v. State (1898), 100 Wis. 296, 75 N. W. 989; Conners v. State (1879), 47 Wis. 523, 2 N. W. 1143.

        McLain v. State (1914), 159 Wis. 204, 149 N. W. 771.

        O’Boyle v. State, supra, footnote 16.

        B — v. State (1918), 166 Wis. 525, 533, 166 N. W. 32.

        Purpero v. State (1926), 190 Wis. 363, 208 N. W. 475; Bohlmann v. State (1898), 98 Wis. 617, 74 N. W. 343.

        Bohlmann v. State, supra, footnote 20, at page 620.

        O’Boyle v. State, supra, footnote 16, at page 299.

       (1933), 211 Wis. 565, 570, 248 N. W. 408.

        Kaczmarsyk v. State (1938), 228 Wis. 247, 280 N. W. 362.


author: Fairchild, J.

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

      June 3

    July 6, 1965.

      For the plaintiff in error there was a brief by Marvin Resnick, attorney, and James^M. Shellow and Shellow & Shellow of counsel, all of Milwaukee, and oral argument by Mr. James M. Shellow and Mr. Resnick.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Plats, assistant attorney general, and Hugh R. O’Connell, district attorney of Milwaukee county.

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

   Fairchild, J.

Welsher’s counsel urge the following claims in seeking a new trial: (1) That the circuit court abused its discretion in permitting Welsher to be tried jointly with Lee; (2) that the circuit court applied an improper standard in ruling upon a motion for dismissal; (3) that the circuit court erroneously permitted certain impeachment of Lee, the codefendant, and this was prejudicial to Welsher; (4) that certain testimony of a deputy district attorney was improper and prejudicial.

The record is voluminous, and we shall state only such facts as will be necessary for a discussion of the four claims above mentioned.

On July 27, 1959, at about 11 a. m. two men held up employees of Grebe Bakery, Inc., at 5132 West Lincoln Avenue, West Allis. The men were heavily disguised, but an employee observed the license number of the car in which they left. The car and plates had each been stolen.

The two men were seen walking away from this car near 5128 West Rita Drive, a short distance south of Lincoln avenue. They walked rapidly toward a wooded area. Several boys saw them going through the woods. A lady saw them walking south on Fifty-first street, south of the woods. Two men saw them enter a Buick automobile and drive away.

Most of these witnesses testified that one of the men carried a blue zippered bag. Some referred to it as “airline” type, and employees of the bakery so described a bag into which the robbers put the money.

The two men on Fifty-first street said the Buick was white on top and blue or bluish on the bottom, was a 1956 or 1957 model, and had a bug screen covering the entire front. One of them thought it was a two-door Roadmaster. A day or two later they were shown a car in the yard behind Welsher’s home. It did not have a bug screen on it. One could not say whether it was the same car. The other thought it was the same car, but had some doubt.

Mr. Welsher lived in St. Francis. The lady who lived next door described his car as a 1957 four-door Buick two-tone, with a cream or white top and a bluish-purple bottom. There was a large bug screen on the front for about one month before July 27th. She testified that she saw the car at the Welsher home early in the morning, but that it was not there at 9 or 11 or noon. She saw Welsher return in his car about 12:30 or 1 p. m. He left again, and came back about 4 p. m. At this time she saw him remove the bug screen.

The jury saw Welsher’s car and by stipulation were permitted to consider it as evidence, and a small plate taken from it was introduced in evidence.

Several of the boys in the woods and one of the men south of the woods positively identified Lee as one of the two men. Two of the boys identified Welsher on direct examination, but on cross-examination said they were not positive. One was age thirteen, one fifteen. Another thirteen-year-old stated on direct examination he was “not too sure” about Welsher. Several of the boys had selected pictures of both men out of photographs shown them by the police.

Search of Lee’s home produced a gun which employees at the bakery said was similar to the gun held by one of the robbers.

There was testimony indicating that Welsher and Lee were acquainted, and that Lee had been at Welsher’s home at times.

1. The joint trial. Mr. Welsher’s counsel point out: (1) The weight of the evidence against Lee was much greater than that against Welsher; (2) the finding of the gun on Lee’s premises might have been improperly regarded by the jury as evidence against Welsher because the testimony was that the gun of that type was carried by Lee’s companion; (3) Lee’s original, but abandoned, claim of alibi was used to impeach Lee’s testimony as to his amended alibi, and impeachment of Lee might have improperly influenced the jury against Welsher.

Welsher moved seasonably for a separate trial. It is argued that since the first two of the points above mentioned were apparent from the transcript of the preliminary examination, it was an abuse of discretion to deny the motion. It is further argued that after all three of the propositions above stated became apparent at the trial, the prejudicial impact on Welsher was so great that the court should, on its own motion, have declared a mistrial as to Welsher.

We find no abuse of discretion in denying the original motion. Welsher did not move for a mistrial. The question would be whether the jury would probably be influenced against Welsher by evidence relevant against Lee alone or by Lee’s presence as a codefendant. We do not consider the probability sufficient to have compelled the circuit court to order a mistrial on its own motion nor for us to grant a new trial in the interest of justice now.

Most of the witnesses testified to their observation of the two men who robbed the bakery, walked through the woods, and drove away in a Buick similar to Welsher’s. The fact that a number of these witnesses did not testify that they recognized him as one of the men would not have made their testimony irrelevant in a separate trial of Welsher. The gun and the material used to impeach Lee were not of sufficient magnitude to constitute an “entire line of evidence relevant to the liability of only one defendant,” but “treated as evidence against all defendants by the trier of fact simply because they are tried jointly.” Had a separate trial been had, the great bulk of the evidence may well- have been the same.

The circuit court instructed the jury that it was their duty to judge the guilt or innocence of each defendant separately, and that they might find one guilty and the other innocent, or both guilty, or both innocent. The impropriety of convicting one because the evidence against the other was stronger, or of being influenced against one by proof that did not relate to him is obvious and was doubtless stressed by Welsher’s separate trial counsel. We do not consider that the circumstances made it difficult for a conscientious jury to perform this aspect of its duty.

2. The claim that the circuit court applied an improper standard in ruling upon Welsher’s motion to dismiss. Welsher made a motion to dismiss at the close of the defendants’ case. Judge Gordon denied the motion and made these remarks:

“The court has no hesitancy in denying your motion. There are indeed inconsistencies in the testimony as to clothing. There is testimony that conflicts with the comment on the automobile. There are other factors in the defendant Welsher’s favor, but there is by no means a sufficient case so the court can say, as a matter of law, the defendant is not guilty.”

Welsher argues, principally from the use of the words “sufficient case,” that the court was saying that defendant had a burden of proof which must be met before the court could hold as a matter of law that the defendant is not guilty. We do not so interpret the remarks.

Remarks by a court in this context are significant upon review only if they demonstrate that the court’s ruling was grounded upon an improper rule or mistake of fact, prejudicial to the complaining party. They need not have the precision or completeness as a statement of the law which would be required in an instruction to the jury, for example.

An accurate statement of the rule for testing the sufficiency of the evidence on a motion to dismiss, as well as on appeal, is “ ‘whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt’. . . This test has been phrased as in civil cases in shorthand form, ‘any credible evidence to sustain the verdict,’ but this must be understood to mean in a criminal case credible evidence sufficient to convince a jury beyond a reasonable doubt.”

In discussing the application of this test to cases resting upon circumstantial evidence, this court cited an earlier formulation, with approval, as follows:

“. . . Kollock v. State (1894), 88 Wis. 663, 60 N. W. 817, states the principles applicable to circumstantial evidence to be: 1. That each of the several circumstances upon which the conclusion of guilt necessarily depends must be proved beyond a reasonable doubt; and 2. they must not only point with moral certainty to the guilt of the defendant, but must exclude to a moral certainty every other reasonable hypothesis. The rule does not require the exclusion of all other possible hypotheses or even probabilities, but only reasonable hypotheses of innocence.”

Judge Gordon presumably had those tests in mind at all times, including his previous denial of a motion to dismiss at the close of the state’s case, when he commented that a jury issue had been created. His instructions to the jury reflected the same tests in the context of the jury’s function. At the time of sentencing Judge Gordon stated there was no question in his mind of the guilt of defendants.

Evidently Welsher’s trial counsel, in arguing for dismissal, had called attention to variations among the statements of the witnesses, some in describing the clothing of the two men seen by them, and some in describing the car which the two men entered on Fifty-first street and the car seen at Welsher’s home. We assume he had argued that because of these discrepancies there must be sufficient doubt so that the evidence did not fulfil the standard required for conviction. We interpret Judge Gordon’s remarks as meaning that after considering the discrepancies pointed out by counsel (i.e., the “case” at that time offered in support of dismissal) he could not say as a matter of law that the evidence would not support conviction. He did not purport to state the legal standard applied, and we find nothing to indicate he applied an erroneous one.

It should be noted, also, that while counsel argues that the circuit court applied an erroneous rule in deciding to submit the case to the jury, they state in the brief: “The plaintiff in error does not urge that this Court hold, as a matter of law, that the case ought not to have been submitted to the jury,...”

3. Alleged improper impeachment of Lee. Lee and Welsher each took the stand and denied participation in the robbery. Lee testified that he had been at a motorcycle shop at Sixteenth and Wells streets in downtown Milwaukee shortly after 11 o’clock on the morning of July 27th. Witnesses from the shop testified in corroboration and some of them placed the time as early as 11:10. Welsher testified he was at home that morning except for a trip downtown which included a twenty-minute visit with a friend and a stop at a store. He said he was home from 10:45 or 11 a. m. until around 1 p. m. His wife and children testified along similar lines.

Lee was arrested the day after the robbery. On November 27, 1959, he filed a notice of alibi pursuant to sec. 955.07, Stats., stating that at the time the robbery was alleged to have been committed he was at his brother’s residence at Franks-ville, Wisconsin. On May 17, 1960, the circuit court permitted Lee to file an amended notice of alibi stating he had been at the motorcycle shop. At the trial, the court permitted the prosecution to cross-examine Lee with respect to the inconsistent statement in the first notice of alibi. He explained that he had been at Franksville earlier that morning and was confused with respect to the time when he filed his first notice.

Counsel argues that although a statute such as sec. 955.07, requiring advance notice of alibi may not contravene a defendant’s privilege against self-incrimination, such statute creates enough compulsion so that the use of such notice as evidence of a prior inconsistent statement does violate such privilege.

Although we doubt the validity of the argument, even if made on behalf of Lee, it is unnecessary to decide the question in this case. Even if we assume that the use of the original notice of alibi did violate Lee’s privilege, Lee is not complaining, and Welsher has no standing to complain of a violation of Lee’s privilege. Welsher’s claim must be limited to the assertion that impeachment of Lee, proper or improper, probably influenced the jury, improperly, against Welsher, and we have already dealt with that point.

4. Alleged improper testimony by deputy district attorney. Lee and Welsher testified that when they were in the office of Deputy District Attorney DeBrozzo, several of the boys who testified at the trial were present, but were unable positively to identify Lee and Welsher as the men.

The state called Mr. DeBrozzo (who did not participate in the trial) in rebuttal. He testified that these boys were positive as to Lee and two of them were “a little bit hazy about Welsher, but they were sure it was Welsher because he was the size, and they got a look at the side of his face.”

Both Lee’s and Welsher’s trial counsel cross-examined DeBrozzo concerning his recollection that the boys had identified Lee and Welsher as the men in the woods. He answered several times that the boys were positive.

In the course of cross-examination, Welsher’s counsel asked the following question and received the following answer:

"Q. You’re a prosecutor, isn’t that right? You don’t ordinarily defend people in these courts, is that correct? A. I defend them in the office. I refuse to issue a warrant if I believe a man is innocent, and I refuse almost as many warrants as I issue; let’s get that straight; because if I felt at the time either or both of these men were innocent, I would have refused to issue the warrant which I did.”

No motion was.made to have the answer stricken, nor to have the jury instructed to disregard the answer, nor for a mistrial.

Probably the question, although in two parts, could accurately and responsively have been answered “Yes.” It bordered, however, on being argumentative and a double question and carried an implication calculated to be irritating. The answer, indicating Mr. DeBrozzo’s belief in the guilt of defendants, added little if anything to several previous answers on cross-examination in which he stated that the identification had been positive and he had no doubt the boys were positive. Under all the circumstances we do not consider it was error for the court to deny the motion for new trial on the ground of this answer.

5. The statement of facts. Sec. (Rule) 251.44, Stats., permits the parties in a criminal case to stipulate to dispense with an appendix. This saves printing expense for a defendant appellant who pays his own expenses, and for the state if the defendant appellant is indigent. We must point out, however, that unless the statement of facts is prepared in sufficient detail to serve as a reasonably helpful summary of or guide to the transcript of testimony, our burden is very considerably increased. For example the present record has 1,939 pages, 1,500 of which constitute the transcript of the trial, yet the statement of facts is most meager in both briefs, and it has been necessary to assemble many of the facts summarized in this opinion directly from the record.

By the Court. — Judgment affirmed.

Gordon, J., took no part.

         State v. Nutley (1964), 24 Wis. (2d) 527, 543, 129 N. W. (2d) 155; Cullen v. State (1965), 26 Wis. (2d) 652, 133 N. W. (2d) 284, 286.

        State v. Stevens (1965), 26 Wis. (2d) 451, 463, 132 N. W. (2d) 502; State v. Schmear, ante, p. 126, 135 N. W. (2d) 842.

        State v. Johnson (1960), 11 Wis. (2d) 130, 135, 104 N. W. (2d) 379.


author: Per Curiam.

text:
    State ex rel. Eastman, Petitioner, v. Burke, Warden, Respondent.

      July 21, 1965.

      For the petitioner there were briefs by Walter A. Graunke of Wausau.
    For the respondent there was a brief by Bronson C. La Follette, attorney general, and William A. Plate, assistant attorney general.

        State ex rel. Eastman v. Burke (1964), 25 Wis. (2d) 676, 131 N. W. (2d) 370.

   Per Curiam.

On August 10, 1944, petitioner pleaded guilty to first-degree murder in the circuit court for Forest county. He was sentenced to life imprisonment. In November, 1964, this court vacated his conviction and sentence and remanded him to the custody of the sheriff for further proceedings.

A preliminary examination was thereafter had. Petitioner was bound over to the circuit court, where he pleaded guilty to second-degree murder.

The judgment provided for a sentence of not less than fourteen years and not more than twenty-five years.

The trial court applied the provisions of sec. 958.06, Stats. A part of the oral pronouncement of the trial court is as follows :

“It is the judgment and sentence of this court that you be punished by imprisonment in the state’s prison at Waupun at hard labor for a general indeterminate term of not less than 14 years and not more than 25 years.
“It is the further order of the court that under the provisions of sec. 958.06 of the Wisconsin Statutes the defendant is now having a new trial and has had a new trial and shall be sentenced as though the original trial upon which he entered a plea of guilty was a trial and this occasion upon which he enters a plea of guilty is also a trial, and this being a new trial which resulted in conviction of the defendant.
“It is the further order of the court that allowance shall be made and there shall be deducted from the maximum sentence here imposed the time of imprisonment that the defendant has served by reason of the conviction on August 10, 1944, so that on no account may the aggregate term exceed the maximum term of 25 years provided by the statute.
“The effect of this sentence is that the defendant shall not be required to serve more than the aggregate of 25 years and that there shall be deducted from said maximum sentence the twenty years, six months, twenty-six days — in other words, it is the intention of the court that he be given the maximum benefit of the time previously served.”

Petitioner now asserts that his period of confinement has expired, when allowance is made for the twenty years he has spent in prison, together with the good time earned as though he had originally been sentenced to prison for twenty-five years, as ordered by the trial court. Respondent admits in his return that if petitioner is entitled to credit for time served, plus good time earned, he should be discharged. Eastman is entitled to such credits. Proceedings for new trial in criminal cases are governed by sec. 958.06 (3), Stats., which provides:

“(a) A new trial shall proceed in all respects as if there had been no former trial. On the new trial the defendant may be convicted of any crime charged in the indictment or information irrespective of the verdict or finding on the former trial. The former verdict or finding shall not be used or referred to on the new trial.
“(b) If the new trial results in the conviction of the defendant, the trial court shall make allowance for and deduct from sentence imposed whatever time of imprisonment the defendant has served by reason of the acts constituting the offense with which he is charged, so that upon no account may the aggregate term exceed the maximum term provided by the statutes therefor.
“(c) If a defendant is convicted following a new trial and is sentenced to a term of confinement, any time served in prison under the earlier sentence for the same offense shall be counted as time served in establishing eligibility for parole under s. 57.06 (1) (a).”

Sub. (3) of sec. 958.06, Stats., modifies our decision in State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N. W. (2d) 540. In that case petitioner pleaded guilty to first-degree murder. The conviction on his petition for writ of habeas corpus was set aside. We said that if petitioner is retried on the same information the trial court would have no alternative but to sentence him to life imprisonment, although petitioner had already served eleven years. We concluded, at page 440:

“The trial court upon resentence could not take the fact of his eleven years’ imprisonment into consideration. The petitioner then would have to commence another life sentence.”

Two attorney general’s opinions bear mention. In 31 Op. Atty. Gen. (1942), 3, the defendant was sentenced to a term of from one year to ten years on December 4, 1940. He was received at the prison on December 15, 1940. One year later the trial court ordered him returned for a new trial, which was had on December 20, 1941. Defendant was returned to prison following the new trial. His sentence provided that he was entitled “ ‘to have credit of one year on said sentence for time already served.’ ”

The attorney general ruled that the prisoner was not entitled to credit for the time already served, citing sec. 359.07, Stats, (now sec. 959.07) and 27 Op. Atty. Gen. (1938), 329.

The opinion was that commencement and end of a sentence are not part of the sentence, nor any concern of the trial court. Further, the sentence begins at noon when the prisoner is actually received at the penal institution. The effect of the statute is to preclude consideration of prior sentences.

The rule in the Drankovich Case, supra, and the two attorney general’s opinions was concisely stated in Lewis v. Commonwealth (1952), 329 Mass. 445, 450, 108 N. E. (2d) 922:

“Where the error occurs in the proceedings before sentence and necessitates a new trial and not merely a resentence, it seems to be rather generally understood that time served under the sentence which is invalidated need not as matter of law be considered in imposing the second sentence, the reason given being that in seeking a new trial the defendant must be deemed to have consented to a wiping out of all the consequences of the first trial.”

See also Anno. 35 A. L. R. (2d) 1283, Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial. It is there said, at page 1285 :

“The courts generally seem to agree that, absent a statute to the contrary, if a judgment of conviction is reversed at a time when the defendant is serving the sentence imposed, and, following a new trial and a second conviction, a new sentence is imposed, the defendant is not entitled to credit against the second sentence time served under the original sentence.”

We conclude that sub. (3) of sec. 958.06, Stats., was designed to revise the rule of the foregoing authorities so a defendant upon a redetermination of guilt shall receive allowance for whatever time of imprisonment he has served by reason of the acts constituting the offense with which he is charged. However, the use of the words “new trial” in this subsection has caused us difficulty because of Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N. W. (2d) 625. There we held that a motion for new trial under subs. (1) and (2) of sec. 958.06 will not lie where there has been a conviction on a plea of guilty, and we said (p. 142):

“The state contends such a motion for a new trial is not proper because there has been no trial within the meaning of the section and therefore there can be no new trial. In Belter v. State (1922), 178 Wis. 57, 189 N. W. 270, it was stated a plea of guilty was a waiver of any trial. Certainly the plea avoids a contest of disputed facts the same as a confession of judgment or the failure to answer in a civil action. A court is permitted to receive a plea of guilty and to enter a judgment thereon under sec. 957.25, Stats., and a conviction may rest upon a plea of guilty without any supporting testimony being taken. Sec. 959.01. A trial is defined as a judicial examination of the issues between the parties whether they be issues of law or of fact. Sec. 270.06; see also 88 C. J. S., Trial, p. 19, sec. 1. We must agree the new trial contemplated by sec. 958.06 is a retrial of issues and the section affords no remedy for one convicted on his plea of guilty.”

The words “new trial” may mean different things in different contexts. We construe “new trial” as used in sub. (3) of sec. 958.06, Stats., as encompassing redetermination of guilt irrespective of whether the original or subsequent determination was made on a plea of guilty. Any other conclusion by us would not give full effect to the limitation on Drankovich which the legislature obviously sought to accomplish by enactment of sec. 958.06 (3).

No substantial reason exists to justify different results as to sentence imposed merely because a defendant has pleaded guilty rather than not guilty. •

The purpose of criminal law is to see that persons accused of crimes shall be properly and fairly convicted. There must be no substantial impediment of this objective. We think such an impediment existed under our former Drankovich rule wherein a convicted person was deemed to have waived time previously served when he challenged the conviction and received a new trial. We deem a rule unfair and unjust which requires a person to serve time in excess of that provided for in a valid conviction and sentence for the same criminal act.

We feel compelled to note that we do not approve of the opinions of the attorney general in 27 Op. Atty. Gen. (1938), 329 and 31 Op. Atty. Gen. (1942), 3, to the effect that the state department of public welfare may disregard as mere surplusage a direction of the sentencing court that the defendant be given credit for time previously served for the same offense.

In this instance the sentence imposed was not less than fourteen years and not more than twenty-five years. These limitations were the minimum and maximum as provided by sec. 340.08, Stats. 1943. Can it be said that the trial court in performing its judicial function did not take into consideration the fact that credit for time served was to be given to the defendant in fixing the maximum of twenty-five years? We think not. Even if the direction and order of the trial court as to credit for time served was erroneous, it was not void and the state department of public welfare may not disregard it. The state, and its agent, the department, should be left with the same remedies as any other litigant, namely rehearing at the trial court, or writ of error.

As noted earlier an inmate who has served his sentence, less good time earned is entitled to a conditional release. However, this provision of ch. 53 applies only to inmates convicted of crimes committed after May 27, 1951. See sec. 53.11 (7), Stats. Prior to that date an inmate who had served his sentence less good time was entitled to an unconditional release. Likewise an inmate who has now served his sentence for a crime committed prior to May 27, 1951, less good time, is entitled to an unconditional release.

By the Court. — The petitioner having had a hearing such as he would have had, had the writ of habeas corpus been issued, it is considered that the issuance of the writ be omitted, and it is adjudged that petitioner is entitled to his release and discharge from Wisconsin state prison and the state department of public welfare and the warden are directed to release the petitioner.

       When an inmate has served his sentence, less good time earned, he must he paroled, that is, placed on conditional release. This is his right. State ex rel. Stenson v. Schmidt (1964), 22 Wis. (2d) 314, 125 N. W. (2d) 634.

       Wherein the trial court sentenced the defendant on February 7, 1938, sentence to begin “as of” September 30, 1937.

       Thus, “A person released under a writ of habeas corpus after having served a part of a sentence of imprisonment imposed under a void indictment is not entitled to have the time so served credited on a sentence subsequently imposed under a valid indictment.” 24B C. J. S., Criminal Law, p. 649, sec. 1995 (6).

       In general, see appropriate headings in Words and Phrases, especially “Trial” and “New Trial.” Thus, for example, it has been said that proceedings whereat a sentence is pronounced are not trials. Reed v. State (1897), 147 Ind. 41, 46 N. E. 135; State v. Hughes (1930), 170 La. 1063, 129 So. 637. And, a proceeding to determine the degree of the crime of murder, on a plea of guilty, is not a trial. State v. Blackwell (1948), 65 Nev. 405, 198 Pac. (2d) 280; Commonwealth v. Petrillo (1940), 340 Pa. 33, 16 Atl. (2d) 50. Yet, it can be fairly said that the acceptance of a plea of guilty and judgment of guilty is certainly a judicial act. Granted that a plea of guilty makes unnecessary the reception of other evidence. The plea is all the evidence required. However, the court must then perform the very necessary task of determining whether it will accept the plea. This factor alone involves a judicial inquiry into the circumstances surrounding the making of the plea of guilty. It certainly is in the nature of “taking of evidence,” which is a commonly understood definition of trial. It has been held that entering a plea of guilty is a trial. People v. Hewett (1943), 40 N. Y. Supp. (2d) 869; People v. Schaefer (1942), 179 Misc. 147, 37 N. Y. Supp. (2d) 963 (proceedings are the equivalent to a trial); People ex rel. Burke v. Fox (1912), 150 App. Div. 114, 134 N. Y. Supp. 642 (the proceeding is as much a trial). Contra: In Re Dawson (1911), 20 Idaho 178, 117 Pac. 696 (a trial means the presentation of issues of fact and a plea takes the place of the jury verdict). However, a new trial in a criminal prosecution is the re-examination of the facts under the same plea of not guilty on the same information or indictment. State v. Keerl (1906), 33 Mont. 501, 85 Pac. 862.

       Subs. (1) and (2) of sec. 958.06, Stats., were enacted many years ago and have in substance, insofar as material here, remained unchanged. Sub. (3) (b) and (c), were enacted by the legislature by ch. 22, sec. 2, Laws of 1963. See also Ronzani v. State (1964), 24 Wis. (2d) 512, 520, 129 N. W. (2d) 143.

         Even a sentence in excess of statutory limits may not be void. See In re Graham. In re McDonald (1889), 74 Wis. 450, 43 N. W. 148, affirmed In re McDonald (1891), 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051; Luitze v. State (1931), 204 Wis. 78, 234 N. W. 382.


author: Heffernan, J.

text:
    McKenna and others, Appellants, v. State Highway Commission, Respondent.

      June 3

    June 25, 1965.

      For the appellants there was a brief by Aberg, Bell, Blake & Metsner of Madison, and oral argument by George G. Blake.

    For the respondent the cause was argued by Richard E. Barrett, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Heffernan, J.

This appeal raises two issues:

1. Does the complaint state a cause of action for damages caused by the commission’s closing of Whitcomb Drive, which changed the petitioners’ access from direct to circuitous ?

2. Does the commission have authority pursuant to sec. 84.25 (3), Stats, (controlled-access highways) to close off accesses without compensation if the area is no longer rural ?

We agree with the conclusion of the trial court that the closing of Whitcomb Drive where it intersects the Madison Beltline, a controlled-access highway, does not state a cause of action for inverse condemnation.

There is no taking in the sense required by the statute, where, as in this case, another access route is available. This is not to say, however, that there can be no taking unless there is a physical occupation, for as we have previously indicated a deprivation of all access would constitute a compen-sable taking. Stefan Auto Body v. State Highway Comm. (1963), 21 Wis. (2d) 363, 368, 124 N. W. (2d) 319.

In the facts before us it appears that prior to the designation of the beltline as a controlled-access highway, the petitioners enjoyed the use of a private driveway entering onto the beltline. Subsequently, when petitioners developed their property, they platted the designated Whitcomb Drive as a public street. The platting of that private road as a public street and its subsequent use as such constituted a dedication to the public. The highway commission by its order of July 2, 1964, deprived the petitioners of access to the beltline at its intersection with Whitcomb Drive. However, access, though less convenient, remains via either Gilbert road or Hammersley road.

Under these circumstances the situation is not unlike the one found in Stefan Auto Body v. State Highway Comm. (1963), 21 Wis. (2d) 363, 124 N. W. (2d) 319. We there held that though a property owner is deprived of direct access to a highway, that this does not constitute a compensable taking of property provided that reasonable access remains.

In Nick v. State Highway Comm., supra, we relied on the precedents arising out of the use of the police power in zoning cases and stated that the diminution of value of land because access to the highway was made more circuitous was not compensable. See also Carazalla v. State (1955), 269 Wis. 593, 608a, 70 N. W. (2d) 208, 71 N. W. (2d) 276.

We therefore hold that the fact that the petitioner McKenna is deprived of beltline access at Whitcomb Drive does not result in a taking of property which constitutes a cause of action for inverse condemnation under sec. 32.10, Stats.

The petitioners claim, however, that the exchange between McKenna and the highway commission which culminated in the letter of November 9, 1949, constitutes a contract between the parties whereby the highway commission agreed to a grant of permanent access to the beltline via Whitcomb Drive.

However, this court views the transaction as merely an offer by McKenna to dedicate the theretofore existing farm driveway as a public street. Certainly, the condition which McKenna met that he would include in the plat the provision that access was not permitted to the beltline, cannot be considered as consideration for a contract, since the property owners do not as a matter of right have ingress or egress to a controlled-access highway. We believe it is clear that the trial judge correctly interpreted this provision when he said that its purpose was:

“. . . to avoid future botheration from plaintiff’s grantees for access to the Beltline all of which the Commission of course would have the right to deny . . . and that the Commission was by its requirement in the letter merely serving notice in advance that such petitions by plaintiff’s grantees would be rejected.”

It appears that no contractual relationship in fact existed. Even had there been one, it is a recognized rule of constitutional law that neither a state nor its agencies can bargain or contract away its police power. State v. Sensenbrenner (1952), 262 Wis. 118, 124, 53 N. W. (2d) 773, and Chicago, St. P., M. & O. R. Co. v. Douglas County (1908), 134 Wis. 197, 207, 114 N. W. 511; La Crosse Rendering Works v. La Crosse (1939), 231 Wis. 438, 285 N. W. 393, 398. As we have said repeatedly the control of access to our highways is a proper exercise of that power. Carazalla v. State, supra.

Nor is the doctrine of estoppel applicable here as the plaintiffs claim. It is essentially their claim that having relied upon the permanency of the access via Whitcomb Drive the highway commission is now estopped from closing the access point.

However, in addition to good-faith reliance, which is arguably present here, there must be such inequitable conduct as to amount to fraud. Jefferson v. Eiffler (1962), 16 Wis. (2d) 123, 113 N. W. (2d) 834. There is no claim that any such element exists in this case. Moreover, the appellant recognizes that a public body is not thus estopped when carrying out a governmental function. We have previously determined that the control of access to highways is an exercise of the police power, an adjunct of government only to be used in the exercise of governmental policy on behalf of the general welfare. As we said in Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis. (2d) 78, 88, 100 N. W. (2d) 571, quoting with approval from 1 A. L. R. (2d) 338, 340:

“ ‘As a general rule the doctrine of estoppel will not be applied against the public, the United States government, or the state governments, where the application of that doctrine would encroach upon the sovereignty of the government and interfere with the proper discharge of governmental duties, and with the functioning of the government, or curtail the exercise of its police power

The fact that the road in question has changed from rural to urban in the period of time since it was designated as a controlled-access highway does not divest the commission of its continuing powers in that respect. Sec. 84.25 (13), Stats., provides that:

“A controlled-access highway shall remain such until vacated by order of the state highway commission . ...”

We therefore hold that the highway commission properly exercised its powers when it ordered the closing of Whitcomb Drive.

By the Court. — Judgment affirmed.

CASES DETERMINED AT THE August Term, 1965.

       The parties have not raised the issue of exhaustion of administrative remedies, which we discussed in Nick v. State Highway Comm. (1961), 13 Wis. (2d) 511, 518a, 109 N. W. (2d) 71, 111 N. W. (2d) 95.

       Sec. 32.10, Stats.:
      “CONDEMNATION PROCEEDINGS INSTITUTED BY PROPERTY OWNER. Whenever any property has been occupied by a body possessing the power of condemnation but where such body has not exercised said power, the owner, if he desires to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. Such petition shall describe the land, state the board, commission or corporation against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the board, commission or corporation against which the proceedings are instituted.”

         Generally, see 16 C. J. S., Constitutional Law, p. 913, sec. 179; 16 Am. Jur. (2d), Constitutional Law, p. 530, sec. 273.

       See Lang v. Cumberland (1962), 18 Wis. (2d) 157, 163, 118 N. W. (2d) 114.

       See sec. 84.25 (3), Stats., which delegates to the commission the power, among others, to “eliminate intersections at grade of controlled-access highways with existing . . . streets ... by closing off such . . . streets at the right-of-way boundary line of such controlled-access highway. . . .”


author: Hallows, J.

text:
    State ex rel. Copas, Petitioner, v. Burke, Warden, Respondent.

      September 15, 1965.

      For the petitioner there was a brief by William L. McCusker of Madison.

      For the respondent there was a brief by Bronson C. La FoUette, attorney general, and William A. Plats, assistant attorney general.
   Hallows, J.

Petitioner was found guilty by a jury in the circuit court for Dane county on February 7, 1963, of violating sec. 944.17 (1) (sexual perversion), sec. 944.11 (2) (indecent liberties with a person under eighteen years of age), and sec. 947.15 (1) (a) (contributing to the delinquency of a child), Stats. Because of his conviction under sec. 944.11, the trial court as required by sec. 959.15 (1) temporarily committed the petitioner to the state department of public welfare for a presentence social, physical, and mental examination. The report of the department recommended the petitioner was in need of specialized treatment for his mental aberrations and the case should be disposed of under sec. 959.15 (6). Upon receiving this report, the trial court appointed two private psychiatrists to examine the petitioner and report to the court. From the reports of these psychiatrists the trial court was satisfied the petitioner was not dangerous to the public and some improvement could be expected if given an opportunity for psychiatric help privately. The court stated it realized crowded conditions existed at the sex deviate center at the state prison and the petitioner might very likely not be helped there under such conditions.

On May 7, 1963, the trial court placed the petitioner on probation on the condition he receive outpatient treatment for his mental and physical aberrations from one of the psychiatrists at his own expense. However, before placing the petitioner on probation and at the insistence of the assistant district attorney the trial court sentenced petitioner to the state prison at Waupun for two concurrent terms of four years each on the two felony counts and to the Dane county jail for one concurrent term of one year on the misdemeanor count and stayed the execution of the sentences.

On October 3, 1963, the petitioner was brought back to court because of an alleged violation of his probation. After a hearing the court found the petitioner violated his probation by lack of co-operation with his psychiatrist and by attempting a sex crime. Probation was revoked and the petitioner was committed to the custody of the state department of public welfare for treatment at its sex deviate treatment facility at the state prison at Waupun pursuant to sec. 959.15 (6), Stats. There is some inconsistency in the facts at this point. At this hearing the court stated it withheld sentencing when it placed the petitioner on probation, and the order of October 3, 1963, so recites. However, the transcript of the hearing of May 7, 1963, clearly shows the petitioner was sentenced to Waupun and to the county jail and the execution stayed.

The petitioner claims that since on May 7th he was sentenced to prison for the two felonies and then placed on probation he could not validly be committed to the state department of public welfare at its sex deviate facility upon revocation of his probation but should have been taken directly to prison to serve his sentence. This argument assumes the sentencing of May 7, 1963, to prison for the conviction of the felonies and then staying the sentences was within the jurisdiction of the court. We believe this is an erroneous assumption. The trial court, upon receiving the state department of public welfare’s report of its pre-sentence social, physical, and mental examination recommending specialized treatment for the petitioner, was without power to sentence him to prison on a punitive basis as it would under sec. 959.15 (5), Stats., if no specialized treatment had been recommended.

The sexual-deviate act was created by ch. 542, sec. 2, Laws of 1951, and replaced the unworkable sexual psychopath law of 1947. The purpose of the act is to protect society from dangerous sex crimes and to provide treatment for the dangerous sex offenders. The act does not apply to all persons committing a sex offense. In the case of offenders whose conduct involved use of force or sex practices with children a commitment to the state department for a pre-sentence examination is mandatory. Sec. 959.15, Stats. In other cases involving sex crimes, such examination is discretionary with the court. A conviction of a sex crime is necessary to come within the purview of the act. Wood v. Hansen (1954), 268 Wis. 165, 66 N. W. (2d) 722. For an analysis of the act and its purpose, see note, Criminal Law—Wisconsin’s Sexual Deviate Act, Wisconsin Law Review (1954), 324.

Originally the act provided in sec. 340.485 (6), now sec. 959.15 (6), Stats., that if the state department of public welfare recommended specialized treatment in its presentence report, the court was required either to place the convicted person on probation with a condition he receive outpatient treatment in such manner as the court prescribed or commit him to the department for treatment. In State v. Sutter (1958), 5 Wis. (2d) 192, 92 N. W. (2d) 229, this court pointed out that when the department of public welfare makes its presentence report of its social, physical, and mental examination the court’s authority in dealing with the defendant depends upon whether or not the department recommends specialized treatment for him. This provision was held constitutional in State ex rel. Volden v. Haas (1953), 264 Wis. 127, 131, 58 N. W. (2d) 577, wherein the court pointed out that the Wisconsin legislature on enacting the provision recognized that “sex crimes are frequently committed by persons afflicted with mental aberrations, and has established this means of accomplishing the rehabilitation and adjustment of the offender to society for the protection of the public. There can be no question but that this method of rehabilitation is more desirable, from the standpoint of both the individual and society, than the punishment by imprisonment prescribed in sec. 340.47.”

The original act made no express provision for supervision and control by the state department during probation. Some confusion in the practice resulted which led to the amendment so that the probation was “under the provisions of ch. 57,” thus giving the state department control and supervision of persons on probation receiving outpatient treatment. It was not the intention of the legislature by the use of these words and the language does not import that the probation under the sexual-deviate law administered under ch. 57 would permit or authorize the court to sentence such person as distinguished from placing him on probation or committing him to the department. (See the report of John W. Tramburg, director, to members of the state department of public welfare dated August 8, 1952.) By ch. 169, Laws of 1961, sec. 959.15 (6), Stats., was amended to provide inpatient treatment as an alternative to outpatient treatment as a condition for probation.

A person for whom the presentence report of the department recommends treatment cannot be sentenced to punitive punishment but must be either committed to the department for treatment or placed on probation with treatment. The probation is a means of providing needed treatment privately without imprisonment or confinement. If the terms or conditions of probation, which is now under the supervision and control of the state department, are violated the person should be returned to the court and it may then commit him to the department for treatment at its sex deviate facility, which is presently located at the state prison at Waupun.

It is argued the sentencing the petitioner to prison and then staying the sentence was only an erroneous judgment not an invalid exercise of power. An erroneous judgment, of course, may be modified prior to the execution of the sentence or if the sentence is stayed, as in this case, before the expiration of the term of court in which the sentence was pronounced. However, the term of the circuit court for Dane county expired prior to the violation of the probation and thus even if the sentence was erroneous it could not now be modified by the trial court. The rules governing the modification of erroneous judgments were recently stated in State ex rel. Reynolds v. County Court (1960), 11 Wis. (2d) 512, 105 N. W. (2d) 812, and are of long standing. See In re Graham (1889), 74 Wis. 450, 43 N. W. 148. It is quite plain in this case we are not dealing with an erroneous judgment which a court has the power to make but with a judgment which the court had no power or jurisdiction to make. Because its judgment sentencing the petitioner to prison on May 7, 1963, was void, the court had jurisdiction and the duty on October 3d to commit the petitioner to the department at its sex deviate facility under sec. 959.15 (6), Stats.

By the Court. — The writ of habeas corpus is denied.

       “(6) Commitment to the department. If it appears from said report that the department recommends specialized treatment for his mental or physical aberrations, the court shall order the proper county authorities to bring him before the court at county expense and shall either place him on probation under ch. 57 with the requirement as a condition of such probation, that he receive outpatient or inpatient treatment in such manner as the court prescribes, or commit him to the department under this section. If he is committed to the department the court shall order him conveyed by proper county authorities, at the expense of the county to the sex deviate facility, established by the department.”

       Legislative Reference Bureau (Drafting Records for ch. 85, Laws of 1953).


text:
    State ex rel. Stroetz, Petitioner, v. Burke, Warden, Respondent.

      September 27, 1965.

      For the petitioner there were briefs by Peter S. Nelson of Appleton.
    For the respondent there were briefs by Bronson C. LaFottette, attorney general, and William A. Plats, assistant attorney general.
   Per Curiam.

In this habeas corpus proceeding we are concerned with alleged denial of constitutional rights with respect to the original 1954 judgment and the subsequent 1959 order continuing petitioner in the control of the department.

The 1954 Judgment.

Petitioner’s attack upon the 1954 judgment of conviction is grounded upon a claim that petitioner was deprived of representation of counsel. The record discloses that the following took place at the time of petitioner’s arraignment on June 25,1954:

“By the Court: You have heard the reading of the complaint — are you guilty or not guilty ?
“Ralph Stroetz: Guilty.
“By the Court: At this time the Court advises you that you can retain an attorney to represent you. Do you wish to retain and [sic] attorney before you plea to the Information? A. No.
“Q. If you are indigent the Court will appoint an attorney for you. Do you wish to retain an attorney? A. No. (At which time the Information was read to the Defendant.)
"Q. Let the record show the defendant states he — the defendant states in open court he does not wish to retain a lawyer before pleading to the Information. The defendant was duly advised of his legal and constitutional rights. What is your plea to the reading of the Information? A. Guilty.
“Q. Let the record so indicate. Upon said plea the Court finds the defendant is guilty.”

Prior to arraignment petitioner had freely admitted his guilt to the district attorney and the district attorney had obtained a statement from petitioner in question and answer form in which petitioner had freely described the acts establishing the commission of the crime with which he was charged. Petitioner testified at the circuit court hearing that he was induced to plead guilty and waive counsel by reason of certain statements made to him by the district attorney including that, if he pleaded guilty, he would be committed for treatment and rehabilitation and then released at the end of six months. The district attorney denied making the statements testified to by petitioner, and the circuit court expressly found that “there is more credence in his [the district attorney’s] denials than there is in the charges [made by petitioner]” and, “The Petitioner was not induced to waive counsel and enter a plea of guilty by any statement, representation or promise of the District Attorney.” The credibility of petitioner and of the district attorney was for the circuit court to determine.

Petitioner further contends that the municipal court at time of arraignment advised petitioner of his right to counsel in a very perfunctory and inadequate manner that fell far short of the standards set forth in State ex rel. Burnett v. Burke. However, as we pointed out in State ex rel. Kline v. Burke, merely because all of the precautionary steps recommended in Burnett may not have been followed does not render constitutionally tainted an acceptance of waiver of counsel and a plea of guilty. This is because the evidence adduced at the hearing conducted by the circuit court may support a finding that the waiver of counsel was freely, voluntarily, and understandingly made by petitioner.

At the time of arraignment petitioner was twenty-five years of age. He had graduated from high school but ranked No. 140 scholastically in a class of 154. Petitioner then attended Carthage College for a year and a half when he was asked to leave because of poor grades. Thereafter, he attended a university extension center for a short time and again was asked to leave because of poor work. At the time of his arrest he was employed by the Marathon Paper Corporation as a pressman’s helper earning $55 to $62 per week. The evidence establishes that petitioner appreciated the revolting nature of his offense, was embarrassed and remorseful, and wanted the matter of plea .and sentence over with as quickly and quietly as possible. Furthermore, petitioner had been in court twice before on criminal charges, first for assault and battery and then for operating a motor vehicle while intoxicated, and thus had some prior familiarity with criminal proceedings in court.

The circuit court found an intelligent waiver of counsel at time of arraignment by this express finding:

“The State has met its burden of proof to satisfy this court that, notwithstanding the record made, as falling below the standards of section 957.26 (2) of the statutes, the plaintiff sufficiently understood his rights to counsel, intelligently waived them and voluntarily entered a plea of guilty.”

We determine that this finding is not against the great weight and clear preponderance of the evidence.

The 1959 Order.

Sec. 959.15 (12), Stats. 1957, provides that a person who has been convicted of a sex crime and been committed to the department for treatment, such as petitioner, who has not been previously discharged from control, must be so discharged at the expiration of the maximum term prescribed by law for the offense for which he was committed unless the department has previously made an order directing that he remain subject to its control and has applied to the committing court for a review of such order as provided in sub. (13) of sec. 959.15. The maximum term of imprisonment under sec. 351.40, Stats. 1953 (now sec. 944.17), under which he was convicted, is five years.

Pertinent to this proceeding are subs. (13) to (15) of sec. 959.15, Stats. 1957, which provide:

“(13) Continuance of control; order and application for review by the committing court. If the department is of the opinion that discharge of a person from its control at the time provided in sub. (12) would be dangerous to the public for reasons set forth in 'sub. (14), it shall make an order directing that he remain subject to its control beyond that period; and shall make application to the committing court for a review of that order at least 90 days before the time of discharge stated.
“(14) Action of committing court upon application for review; reasons for continuance of control by the department. (a) If the department applies to the committing court for the review of an order as provided in sub. (13), the court shall notify the person whose liberty is involved, and, if he be not sui juris, his parent or guardian as practicable, of the application, and shall afford him opportunity to appear in court with counsel and of process to compel the attendance of wit nesses and the production of evidence. He may have a doctor or psychiatrist of his own choosing examine him in the institution to which he is confined or at some suitable place designated by the department. If he is unable to provide his own counsel, the court shall appoint counsel to represent him. He shall not be entitled to a trial by jury. (Italics supplied.)
“(b) If, after a hearing, the court finds that discharge from the control of the department of the person to whom the order applies would be dangerous to the public because of the person’s mental or physical deficiency, disorder or abnormality the court shall confirm the order. If the court finds that discharge from the control of the department would not be dangerous to the public for the causes stated, the court shall order that he be discharged from the control of the department at the time stated in the original commitment.
“(15) Review by court of subsequent orders of the department. (a) When an order of the department is confirmed as provided in sub. (14), the control of the department over the person shall continue, but unless he is previously discharged, the department shall within 5 years after the date of such confirmation make a new order and a new application for review thereof in accordance with this section. Such orders and applications may be repeated as often as in the opinion of the department it may be necessary for the protection of the public.
“(b) Every person shall be discharged from the control of the department at the termination of the periods stated in par. (a) of this subsection unless the department has previously acted therein as required, and shall be discharged if the court fails to confirm the order as provided in sub. (14).”

The evidence discloses that about a week before the March 20, 1959, court hearing, on the department’s order continuing its control over petitioner, one of the prison officials notified him of the hearing. The only evidence that petitioner was advised prior to the hearing of his right then to have counsel is the testimony of Mr. Coogan, Administrator of Probation and Corrections, that he so advised petitioner about twenty minutes prior to the hearing. Petitioner denied having any recollection of such a conversation.

The circuit court made these findings with respect to this 1959 hearing:

“15. That prior to and on March 20, 1959, the trial court failed to comply with the requirements of Sec. 959.15 (14) (a) with respect to notifying the Petitioner of the hearing for review of the Department’s order for continued control; with respect to affording him the opportunity to appear in court with counsel; with respect to advising him of his right to have process to compel the attendance of witnesses and production of evidence; and with respect to his right to be examined by a doctor or psychiatrist of his choice, or of his right to have counsel appointed for him on his inability to retain one.
“17. The routine advice of Mr. Matt Coogan, Administrator of Probation and Corrections, to the Petitioner with respect to his rights to be represented by counsel at his or State expense, twenty minutes before the hearing, if given, was wholly untimely and insufficient to meet the requirements of Sec. 959.15 (14) (a) of the statutes.
“18. The State failed to meet its burden of proof to satisfy this court that the Petitioner sufficiently understood his rights in connection with the hearing and intelligently waived his rights to counsel, medical testimony, and process for calling witnesses.
“19. The Petitioner did not intelligently understand or know his rights with respect to the hearing. He was not timely or sufficiently advised or notified with respect to his rights so as to afford him the timely opportunity to avail himself of them. The hearing on March 20, 1959, was a unilateral proceeding, not participated in by Petitioner because of his failure to appreciate its purpose or nature or significance, and wholly violative of his statutory and Constitutional rights of representation and participation.” (Emphasis supplied. )

We confirm these quoted findings which are fully supported by the great weight and clear preponderance of the evidence. We further determine that petitioner was denied his statutory and constitutional rights to be represented by counsel at this 1959 hearing. This brings us to the crucial issue of whether this denial is jurisdictional so as to render completely void the order of March 20, 1959, or whether it is a non jurisdictional error which can be cured by a new court hearing on the original or further departmental order continuing control at which petitioner is adequately represented by counsel. If the March 20, 1959, order were to be held absolutely void then petitioner would be entitled to his immediate release from control.

A majority of the court conclude that the error is non-jurisdictional. Being non jurisdictional, if petitioner any time prior to the 1964 hearing had filed a petition for habeas corpus, the remedy which would have been accorded him would have been to order a new court hearing at which he would have been provided with counsel, if indigent, and accorded the other rights provided in sub. (14) of sec. 959.15, Stats. However, the 1964 hearing upon the further order of the department did accord petitioner all these rights and renders the errors of the 1959 hearing nonprejudicial as of this time.

The court majority predicate their determination of non-jurisdictional error upon legislative intent. They cannot conceive that the legislature intended that one convicted of a sex crime whom both the department and the committing court after a hearing had determined to be potentially dangerous to the public should be absolutely released because of error in denying representation by counsel. Rather they are convinced that it would better accord with legislative intent to hold that the error was curable by a further court hearing conducted in accordance with statute.

The findings of the circuit court are confirmed and the petition for habeas corpus is denied.

       (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91.

       (1965), 27 Wis. (2d) 40, 45, 133 N. W. (2d) 405.