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

      December 3, 1965

    January 4, 1966.

      For the plaintiff in error there was a brief by Peter W. Bunde, attorney, and Norman L. Winn of counsel, both of Milwaukee, and oral argument by Mr. Bunde.

    For the defendant in error the cause was argued by Paul T. Miller, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Hugh R. O’Connell, district attorney.
   Currie, C. J.

Defendant attacks the judgment of conviction on these three grounds:

(1) He was placed in double j eopardy.

(2) He was denied due process of law because he was interrogated by the police without being advised of his right to remain silent and of his right to counsel.

(3) There is insufficient credible evidence to sustain his conviction.

Double Jeopard')/.

Defendant’s claim of double jeopardy is premised upon the contention that the trial court made a finding of fact that defendant was not guilty at the conclusion of defendant’s testimony given at the time it had under consideration the acceptance of defendant’s plea of guilty. The statements relied upon by defendant took place in a colloquy between the court, assistant district attorney Surges, and defendant’s counsel, Parrish. This colloquy was as follows:

“MR. SURGES: If the Court please, I don’t think this man fully understood what he was doing when he pled guilty to the charge.
“THE COURT: Well, he did, but on his statement as to what transpired, if that is true, then he is not guilty. So it is a plea of guilty which we sometimes see here, which we will not permit to stand under one corner of his mouth and not guilty on the other corner of his mouth when he testifies.
“So I think what we should do here is change the plea to not guilty, if he wants to try it before the Court, continue the trial, then the State can reopen and proceed farther, so can Mr. Parrish.
“MR. PARRISH: I have no objection, your Honor.
“THE COURT: I mean I can’t let the record stand like this, obviously. On his statement he is not guilty. Correct, gentlemen?” (Emphasis supplied.)

We reject the contention that the trial court made an express finding of not guilty. The trial court’s two italicized statements are interpreted as being equivalent to saying, if defendant is to be believed, then he is not guilty. The trial court at that time did not pass on the credibility of defendant’s testimony so as to remove this qualification.

Furthermore, defendant’s testimony had not been taken for the purpose of determining defendant’s guilt of the offense charged, but solely for the limited objective of determining whether he had understanding^ entered his plea of guilty. Thus there was no trial had on the merits until the plea was changed to one of not guilty. The evidence thereafter presented was not in any sense a new trial but part of one continuous prosecution.

Failure of Police to Advise of Constitutional Rights.

At the trial police officers testified with respect to what defendant had told them when they questioned him. The only damaging answer given by defendant was his denial at first that he had any knowledge of the cashing of the check. His other answers to questions given after arrest were entirely consistent with his testimony given at trial. No confession or admission of guilt was made by defendant.

Defendant contends that it was a denial of due process for the police to have questioned him without first advising him of his right to remain silent and that he was entitled to have counsel.

This court has never adopted a hard-and-fast rule that an accused must be informed of his constitutional right not to incriminate himself before he can be interrogated by law-enforcement officers. We, however, in State v. Bronston commended the practice of law-enforcement officers informing arrested persons accused of crime of their constitutional right to remain silent before questioning them. This recommendation was reiterated in Holt v. State accompanied by the statement, “. . . that failure to do so will not render the product of the interrogation inadmissible unless it appears that the defendant by reason of his education, intelligence, or other circumstances has been imposed upon.”

In the instant case defendant was thirty-one years of age, his education had extended into the tenth grade, and he had three years’ experience serving in the air force. He had a prior criminal record which undoubtedly apprised him of his right not to answer questions put to him by the police. This is manifested by his refusal to answer certain questions. Under the “totality of circumstances” test we find no denial of due process in the failure of the police to have advised him of his right to remain silent before they interrogated him.

The failure of the police to have informed him of right to counsel presents an Escobedo Case problem. In the recent case of Neuenfeldt v. State we adhered to our prior position that we would not extend Escobedo beyond its own peculiar facts. As we noted by footnote in Neuenfeidt, the United States supreme court recently accepted jurisdiction in four cases raising Escobedo problems. We decline to anticipate what guiding principles will ultimately be announced by that court in those cases. Therefore, we find no denial of constitutional rights predicated upon failure of the police to say anything about right to counsel prior to questioning defendant.

Credible Evidence to Sustain Conviction.

No motion for acquittal was made at the conclusion of the state’s case, and, therefore, the evidence adduced by defendant as well as by the state is to be considered in passing on the issue of the sufficiency of the evidence to convict.

Sec. 943.38 (2), Stats., under which defendant was charged provides:

“Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, may be fined or imprisoned or both as provided in said subsection.”

Defendant centers his attack upon the fact that there was no direct evidence adduced that he knew that the signature of the payee Sutton was forged at the time defendant negotiated the check. One of the detectives testified that the police document examiner had concluded that this forged signature was not in the handwriting of defendant.

In addition to Bell’s direct contradiction of defendant’s story as to how defendant had come into possession of the check, there are other factors which would warrant the trial court in concluding that defendant’s testimony was a fabrication. Defendant possessed no means of transportation of his own to go from the Ruth tavern to the Keller Liquor Store, get the liquor and transport it back to the tavern. He testified that upon Bell’s sending him on this errand he stepped outside the tavern and saw a stranger in a car about to pull away from the curb. Defendant then asked this stranger to take him to Keller’s and return to the Ruth tavern with the liquor. The stranger agreed to do so. Upon returning to the tavern defendant paid this stranger either seventy-five or fifty cents, but defendant did not ask Bell for reimbursement of this expenditure. Neither did defendant receive any remuneration from Bell for performing the errand.

It was within the province of the trial court to completely disbelieve defendant. Proceeding on the premise that defendant’s story as to how he acquired the check was not true, it is a reasonable inference that he would not have fabricated such a story if he had acquired the check innocently. Other significant facts are these: The check was dated June 26, 1963, and had been mailed to Sutton, but Sutton never received it. The very next day defendant negotiated the check at Keller’s. Sutton testified he had known defendant since May, 1968. Defendant also knew where Sutton lived as defendant had been seen two years before in the building where Sutton resided.

All of this gives rise to a reasonable inference that defendant had not acquired the check innocently and must have known that Sutton’s signature on the back was a forgery.

In State v. Johnson this court made it clear that the approach it takes when reviewing a trial court’s determination of guilt based on circumstantial evidence is no different than when a determination is based on direct evidence. We quote from that opinion as follows:

“The trial judge found he was convinced of the defendant’s guilt beyond a reasonable doubt. On this appeal it is our duty to determine whether the circumstantial evidence is sufficient to sustain the finding of the trial court. State v. Schweider (1959), 5 Wis. (2d) 627, 94 N. W. (2d) 154. This court does not retry the case on the facts in the record to determine if each of its members is convinced of the defendant’s guilt beyond a reasonable doubt. An appellate court cannot function as a trial court or as a jury. Its duty and right is to determine whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt. State v. Hanks (1948), 252 Wis. 414, 31 N. W. (2d) 596; Parke v. State (1931), 204 Wis. 443, 235 N. W. 775, and cases cited therein. See also State v. John, ante, p. 1, 103 N. W. (2d) 304. The rule is no different when the trial court is the trier of the facts. State v. Evjue (1949), 254 Wis. 581, 37 N. W. (2d) 50.”

We conclude that there was sufficient credible evidence to sustain the judgment of conviction.

By the Court. — Judgment affirmed.

       For a statement of this principle of continuity applicable to problems of double jeopardy, see State v. Schmear (1965), 28 Wis. (2d) 126, 135 N. W. (2d) 842.

         Neuenfeldt v. State, ante, p. 20, 138 N. W. (2d) 252; Holt v. State (1962), 17 Wis. (2d) 468, 479, 117 N. W. (2d) 626; State v. Bronston (1959), 7 Wis. (2d) 627, 641, 97 N. W. (2d) 504. See also Link v. State (1935), 217 Wis. 582, 586, 259 N. W. 428, 261 N. W. 416; and State v. Whatley (1933), 210 Wis. 157, 168, 245 N. W. 93.

        Supra, footnote 2, at page 641.

        Supra, footnote 2, at page 480.

         Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977.

        Supra, footnote 2.

       See State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753; Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169; certiorari denied, 379 U. S. 1004, 85 Sup. Ct. 730, 13 L. Ed. (2d) 706; rehearing denied, 380 U. S. 959, 85 Sup. Ct. 1094, 13 L. Ed. (2d) 977.

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

       Id. at page 137. This is in accord with the approach taken upon review of a determination based on direct evidence. Gauthier v. State (1965), 28 Wis. (2d) 412, 416, 137 N. W. (2d) 101; State v. Waters (1965), 28 Wis. (2d) 148, 153, 135 N. W. (2d) 768; See Hemmis v. State (1964), 24 Wis. (2d) 346, 353, 354, 129 N. W. (2d) 209, for an affirmance of a trial court’s finding of guilt based entirely on circumstantial evidence; Johnson was quoted therein with approval.


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

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

      December 3, 1965

    January 4, 1966.

      For the plaintiff in error there was a brief and oral argument by Richard J. Steinberg of Milwaukee.
    For the defendant in error the cause was argued by Richard B. Surges, first assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O’Connell, district attorney.
   Wilkie, J.

Although one of the defendant’s writs of error seeks a review of the judgment of conviction entered on February 19, 1964, DeVougas made no argument here that the judgment was erroneous. His entire argument goes to the refusal to permit him to withdraw his plea of guilty. A motion to withdraw a plea of guilty and, consequently, to grant a new trial, is not governed by sec. 958.06, Stats., but is a motion directed to the discretion of the court.

“The question of the withdrawal of a plea of guilty or of nolo contendere is addressed to the discretion of the trial court. A decision to grant or deny a motion for withdrawal will not be disturbed on appeal unless it is shown to have been an abuse of discretion.”

In Van Voorhis v. State this court said:

“Although an application for leave to withdraw a plea is ordinarily addressed to the discretion of the court such withdrawal would be a matter of right if the applicant established in fact a denial of a relevant constitutional right, such as right to counsel.”

But DeVougas did not argue at the hearing on his motion or here that any constitutional right was denied so as to make a change of plea a matter of right.

Thus, the sole issue on this review is: Did the trial judge abuse his discretion by refusing to permit DeVougas to withdraw his plea of guilty?

In his motion DeVougas alleged (1) that he was a drug addict at the time the guilty plea was entered and as a result was not competent and mentally capable to enter the plea; (2) that he entered the plea under the assumption that he would be referred to a medical center for treatment and not to a penal institution; and (3) that he had a meritorious defense to the charges against him in that he had a legitimate medical need for drugs and, being unable to obtain them through normal channels, was compelled to obtain drugs by other means.

As to the defendant’s allegation that he was a drug addict and under the influence of drugs at the time of his guilty plea, and incompetent and not mentally capable to enter a plea at the time, we have nothing but his bare allegation. No record was made at the time of the hearing on the motion and there are no supporting medical or other affidavits giving details to support this assertion. In substance, defendant’s contention here is that the mere assertion that he was incompetent at the time of the plea is enough to require the court to vacate the conviction and sentence and to allow the defendant to change his plea. There is absolutely nothing in the record to support the defendant’s allegation and if the defendant is to challenge the trial court’s refusal to grant the motion on this ground there must, as a minimum, be something in the record to establish the fact of incompetency at the time of the guilty plea.

At the time of entering his plea nothing was said to the defendant to the effect that he would be treated for his addiction. At the time of sentencing (two months after his conviction) there were some statements by his counsel that he needed treatment, but counsel conceded that the court had no power to commit to the hospital for treatment where the offense was under sec. 161.17, Stats., rather than sec. 161.02 (3) .

Before sentence was imposed the state stated that defendant could receive treatment at Waupun. There was no abuse of discretion by the trial court here in not granting defendant’s motion bottomed on his complaints about the treatment or lack of it at Waupun. The plea of guilty was made on December 17, 1963, without any promise of treatment. The medical treatment given the defendant at Waupun following his imprisonment is not of record here and not pertinent to the motion made by defendant.

The defendant contended that he had a meritorious defense to the charges against him by reason of his medical need for drugs. Two months after he was convicted on his plea of guilty, at the sentencing hearing, his attorney stated:

_ “It is my thought that if it can be established through him and other competent proof that he resorted to the use of this drug because of an impelling force in order to relieve the pain and could not get help otherwise, that he is then not guilty of violation of this statute.”

However, DeVougas was not convicted as a “user” under sec. 161.02 (3), Stats., but for obtaining drugs by fraud and deceit in violation of sec. 161.17, which makes no exception for drug addicts.

The defendant entered his plea of guilty while represented by counsel and after being fully informed of the possible consequences of his guilty plea. Nothing indicates that the plea was not entered voluntarily and intelligently. After entering the plea of guilty, DeVougas testified and admitted under oath that he did obtain drugs by means of forged prescriptions. Even now there is no contention that DeVougas did not commit the acts for which he was convicted. Under the circumstances the trial judge did not abuse his discretion when he refused to permit DeVougas to withdraw his plea and denied his motion for a new trial.

It is apparent from the record that DeVougas was ill from the use of drugs and his real argument is that society should recognize that drug addicts are sick and the law should provide for the treatment, rather than conviction and imprisonment, of a drug addict who, because of his need for drugs, is involved in what would otherwise be a crime.

In Robinson v. California the United States supreme court declared unconstitutional a California statute making it a crime to be an addict. Recently we have held that the California statute was clearly distinguishable from ch. 161, Stats., in that sec. 161.02 (3) makes it a crime to take and use drugs (1) habitually or (2) in excess or (3) not pursuant to a prescription, whereas the California statute punished the “status” of being an addict. The distinction here is even more obvious because the crime with which the defendant was charged under sec. 161.17 (1) (b) is for “fraud and deceit” in obtaining drugs. Accordingly the Robinson rationale has no application to sec. 161.17 and that section is constitutional.

The defendant would have the sentencing court commit an offender against sec. 161.17, Stats., who is ill from drugs, for hospital treatment to cure his addiction. The court has no such power. The legislature, not this court, is the proper body to consider whether or not it is advisable to empower a court, in its discretion, to commit a person for treatment (such as is provided under sec. 161.02 (3) if a person is convicted of the habitual or excessive use of drugs or of a use not pursuant to a prescription) where he has been convicted of another offense under ch. 161, such as those of which this defendant was convicted under sec. 161.17 (1) (b).

By the Court. — Judgment and order affirmed.

        State v. Payne (1964), 24 Wis. (2d) 603, 604, 129 N. W. (2d) 250. See also: Myartt v. State (1964), 25 Wis. (2d) 634, 131 N. W. (2d) 371; Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N. W. (2d) 625; La Fave v. State (1940), 233 Wis. 432, 289 N. W. 670; State v. Dowling (1931), 205 Wis. 314, 237 N. W. 98; Gordon v. State (1922), 178 Wis. 205, 188 N. W. 752; Anno. Right to withdraw plea of guilty, 20 A. L. R. 1445, 66 A. L. R. 628.

       (1965), 26 Wis. (2d) 217, 223, 131 N. W. (2d) 833.

       “161.02 Acts prohibited; evidence; penalties, commitment op addicts. ... (3) No person shall take or use narcotic drugs habitually or excessively or except in pursuance to a prescription for permitted use as prescribed in this chapter. The unlawful possession of narcotic drugs by a person or of a hypodermic syringe or needle, except when possessed by a diabetic, shall be prima facie evidence of the unlawful use of such drugs. Any person violating this subsection shall be imprisoned not more than 5 years. The judge of the court wherein said person was convicted may, if said person requires treatment, commit him to some appropriate institution under the control of the state department of public welfare for treatment not exceeding 5 years.”

       See footnote 3, supra. Convictions as a user were upheld against the same argument in State v. Brown (1964), 25 Wis. (2d) 413, 130 N. W. (2d) 760; Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169.

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

         State v. Brown, supra, footnote 4; Browne v. State, supra, footnote 4.


author: Currie, C. J.

text:
    Estate of Mayer: Mayer (Lillie), Appellant, v. Mayer (Clement W.) and another, Coexecutors, Respondents.

      December 3, 1965

    January 4, 1966.

      For the appellant there were briefs by Merten, Connell & Sisolak and Walter L. Merten, all of Milwaukee, and oral argument by Walter L. Merten.

    For the respondents there was a brief by Marth & Marth of West Bend, and oral argument by William J. Marth.

   Currie, C. J.

We consider these issues are presented by the instant appeal:

(1) Does the county court possess the discretion to deny a petition for widow’s allowance where it finds that the widow possesses sufficient financial resources derived • from her deceased husband to provide herself with comfortable support during the probate of her husband’s estate?

(2) If the foregoing question is answered in the affirmative, did the instant order denying the petition for an allowance constitute an abuse of discretion ?

(3) Is the order dismissing the petition for removal of the executors an appealable order?

(4) Did the county court have jurisdiction to dismiss the petition for removal of the executors after the widow had perfected her appeal from the order denying the petition for an allowance?

(5) If the county court possesses such jurisdiction, was it error to have dismissed the petition because neither she nor her counsel appeared at the date of hearing?

Appellant widow’s brief raises other issues with respect to the conduct of the executors. We do not reach such issues because under our disposition of issue (5) we do not find it necessary to pass on the merits of appellant’s petition to remove the executors.

The Petition for Widow’s Allowance.

Sec. 313.15 (2), Stats., provides:

"ALLOWANCE TO FAMILY. The widow and minor children, or either, constituting the family of the deceased testator or intestate, shall have such reasonable allowance out of the personal estate or the real estate, or both, of the deceased as the county court shall judge necessary for their maintenance until an award shall be made or refused as provided in subsection (4) (a) of this section, or their shares assigned to them.”

Appellant contends that while the county court has discretion under this statute in fixing the amount of a widow’s allowance, the statute makes it mandatory that some allowance be ordered. She especially relies upon this statement appearing in Estate of Sullivan:

“It is considered that the object and purpose of the statute is to substitute the estate of the husband for the deceased husband during the progress of the settlement of the estate so far as support of the family is concerned. What allowance should be made is to be determined under all the facts and circumstances. Ordinarily in the case of a solvent estate it would be such sum as would maintain the family in approximately the same degree of comfort in which they were maintained by the husband. Under the statute the widow is entitled to an allowance for her support during the progress of the settlement of the estate and it should be paid when and as there are funds available for that purpose, and the fact that the widow has been able to survive by means of aid extended to her or loans made by her friends or relatives does not deprive her of her rights under the statute.”

While the aforequoted statement makes clear the purpose of the family allowance provided for by sec. 313.15 (2), Stats., it does not declare that such an allowance must be granted in every case of a solvent estate. The use of the word “Ordinarily” at the beginning of the third sentence suggests that there may be exceptions to the rule therein announced. The statutory words “such reasonable allowance ... as the county court shall judge necessary” also are subject to the reasonable interpretation that there might be situations in which a county court could determine that no allowance was necessary. On a number of occasions this court has affirmed the plain meaning of the statute by stating that the matter of allowances is a matter within the discretion of the probate court. As this court said in Ford v. Ford in upholding an allowance by the circuit court:

“Under all the circumstances, the allowance seems quite reasonable, and no good reason appears why this court should now interfere with it. Moreover, the amount of the allowance is a matter within the sound discretion of the court, and the order therefor may be vacated or changed by the county court at any time hereafter for causes arising since it was made.”

We have no hesitancy in holding that sec. 313.15 (2), Stats., does not lay down a mandatory requirement that an allowance must be ordered in every solvent estate in which an application therefor is made. Where, as here, such an application has been wholly denied the issue on review by this court is whether the denial constitutes an abuse of discretion.

In the instant case we have several special circumstances. The decedent was survived by no minor children so the requested allowance is only for the widow. All of the widow’s income except her social-security-benefit payments has been derived from decedent under circumstances which indicate that decedent created these sources of income so that she would be provided with support upon his death. The will contained the significant recital that decedent had arranged for appellant “to receive a guaranteed income for life” after his death and because of this it had been agreed between them that the residue of decedent’s estate should go to his children, or their issue. Appellant offered no evidence to rebut this recital. The record does not indicate that she was ever employed in an occupation covered by social security so it is probable that the monthly social-security-benefit payments which she receives are derivative from the husband’s employment. Her living quarters have been provided through the devise in the will of the right to occupy the homestead for life or until she remarries. Decedent was an insurance agent and had arranged that his share of renewal premiums would be payable to appellant after his death.

The inventory in decedent’s estate lists property of the appraised value of $20,726, exclusive of joint property. Appellant testified that she receives $95.70 monthly from social security and $89.74 monthly under the Wisconsin National Life Insurance Company policy. She also stated that she had received an average of $100 per month in commissions from renewal premiums on policies sold by decedent, but that this amount would decline to zero by 1970. She had not rented the office in the homestead, and, when asked why she had not rented it, she replied, “Why should I?” At the time of decedent’s death there was a joint checking account of $2,890.14 standing in his and appellant’s names and a joint savings account of $357.16, which became appellant’s sole property by right of survivorship. There was no testimony that appellant’s income was not sufficient to maintain her in approximately the same degree of comfort as she was maintained by decedent prior to death.

The instant facts clearly demonstrate that the county court’s denial of the petition for widow’s allowance did not constitute an abuse of discretion.

Order Dismissing Petition for Removal of Executors.

The order dismissing the petition for removal of the two executors is an appealable order under sec. 274.33 (1), Stats., because it is a final order affecting a substantial right made in a special proceeding.

Appellant contends that the county court had been deprived of jurisdiction to enter this order by reason of the fact that prior to the date of issuing this order appellant had perfected her appeal from the order denying the application for widow’s allowance.

An appeal from a judgment or order strips the trial court of jurisdiction with respect to the subject matter of the judgment or order, except in certain unsubstantial and trivial matters, and the supreme court then has jurisdiction until the appeal has been determined. The reason for this rule is that, once the appeal has been taken, the trial court ought not to have the power to do anything that might adversely affect the rights and interests of the parties in the appeal. This rule does not deprive the trial court of jurisdiction to hear and determine a matter which is separate from and independent of the matter determined by the judgment or order appealed from.

We deem particularly applicable, this statement made in Estate of Bailey:

“It will be noticed that this was an appeal from the final judgment, which brought up the entire record in the case. This is said lest it be thought that an appeal from any order of the county court in a probate proceeding transfers entire jurisdiction of the proceeding to this court. An appeal from an order of the county court transfers to this court only such portions of the proceeding as are germane to the order appealed from.”

The hearing and determination of the petition for removal of the executors is a matter distinctly independent and apart from the order denying a widow’s allowance. Its determination would not affect the questions to be determined by the appeal from the former order. Even if the executors were to be removed pending such appeal, the appeal would not be directly affected thereby as the successor administrator, or administrators, with the will annexed, would be substituted as respondent parties. For these reasons we hold that the pendency of this appeal did not deprive the county court of jurisdiction to enter the order dismissing the petition to remove the executors.

The last point to be considered is whether it was error for the county court to have dismissed the petition for removal of executors. We determine that it was within the inherent power of the court to order a dismissal of the petition because of the failure of appellant and her counsel to appear on the adjourned date set for its hearing, and that it was not error to do so. If appellant hereafter institutes a new petition for removal, the order of June 14, 1965, would not be res judicata of the issues raised by such new petition because this order does not purport to pass on the merits of the original petition for removal.

By the Court. — Orders appealed from affirmed.

       (1930), 200 Wis. 590, 229 N. W. 65.

       Id. at pages 592, 593; portions of this statement quoted with approval in Wiener’s Estate v. United States (D. C. Wis. 1964), 235 Fed. Supp. 919; also see Comment, Wisconsin Law Relating to Protection of the Family on Death of the Property Owner, 1960 Wisconsin Law Review, 110, 111.

       (1891), 80 Wis. 565, 50 N. W. 409.

       Id. at page 569; in accord are Baker v. Baker (1881), 51 Wis. 538, 549, 8 N. W. 289; Estate of Sullivan, supra, footnote 1; Comment, 1960 Wisconsin Law Review, 110.

         Estate of Mayer (1965), 26 Wis. (2d) 671, 674, 133 N. W. (2d) 322.

       Cf. Frame v. Plumb (1908), 135 Wis. 24, 28, 114 N. W. 849.

         State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 198, 190 N. W. 121, 191 N. W. 565; Seyfert v. Seyfert (1930), 201 Wis. 223, 226, 229 N. W. 636; Carpenter Baking Co. v. Bakery Sales Drivers Local Union (1941), 237 Wis. 24, 29, 296 N. W. 118.

       (1931), 205 Wis. 648, 653, 238 N. W. 845.

         Corwith v. State Bank of Illinois (1862), 15 Wis. 317 (*289), 318 (*290). Cf. Cases holding that a judgment of nonsuit or dismissal not on the merits is not a bar to a subsequent action on the same cause, Toledo Computing Scale Co. v. Polanis (1914), 157 Wis. 312, 315, 147 N. W. 632; State ex rel. Faber v. Hinkel (1907), 131 Wis. 103, 109, 111 N. W. 217; Gratz v. Parker (1908), 137 Wis. 104, 106, 118 N. W. 637.


author: Heffernan, J.

text:
    Estate of Berry: Board of Trustees of Beloit College and others, Appellants, v. Farrow, Special Trustee, and others, Respondents.

      December 1, 1965

    January 7, 1966.

      For the appellants there were briefs by Caskey & Collins of Beloit, attorneys, and E. L. Wingert of Madison of counsel for all appellants', and William A. McClain of Cincinnati, city solicitor, and Taft, Stettinius & Hollister and John A. More, all of Cincinnati, of counsel for the University of Cincinnati, and oral argument by Mr. Wingert..

    For the respondents Frank Farrow and the Beloit State Bank there was a brief by Blakely, Long, Grutzner & Jaeckle and George K. Blakely, all of Beloit, and oral argument by George K. Blakely.

    For the respondent state of Wisconsin the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Heffernan, J.

The county court considered the will ambiguous and therefore took testimony of Mr. Farrow in an attempt to determine the dominant purpose of Earl E. Berry. It then proceeded to apply the doctrine of cy pres to carry out what it considered to be the testator’s intent.

It is, however, error to construe a will to find an unexpressed intent of the testator when the terms of the will are unambiguous on their face and clearly express the testator’s purpose. This court has stated the rule in Will of Moran (1903), 118 Wis. 177, 196, 96 N. W. 367:

“Many . . . rules might be referred to, to which we could resort in solving ambiguities. But at the outset we must have ambiguity before we can enter upon the field of interpretation or construction. Too often that fundamental principle is not given its proper significance, and ambiguities are created by construction when there are none in fact. ...”

A careful perusal of the will by this court reveals no ambiguity in the clauses that need to be put into operation. While there might have been some ambiguity in the method to be employed by the Beloit Foundation in administering the loan fund, it is clear from the record that the Foundation declined to accept that portion of the bequest. Whatever uncertainties may have arisen under another set of facts and circumstances is of concern neither to this court nor the court below. The record shows that at the initial hearing on this matter, the Foundation had not yet declined to administer the loan fund, but it did so shortly thereafter. Bearing this fact in mind, we are confronted with no ambiguity.

The Foundation clearly renounced what the testator denominated as the “Earl E. Berry Student Loan Fund.” In that contingency, which is now a reality, the will clearly, plainly, and unambiguously gives that portion of the trust estate to the colleges. The will provided that if the Foundation should decline the gift that:

“. . . said Earl E. Berry Student Loan Fund . . . shall be turned over one-half (%) to Beloit College . . . and the other one-half (*4) to the University of Cincinnati ... to be used by each of said institutions as a loan fund for the assistance of their respective students.

It would have been difficult to have expressed the testator’s obvious intent more clearly than did the able scrivener of the above paragraph. It is plain on the face of the will that the bequest was to go in toto to the Beloit Foundation. Two thirds was to be administered by it as a loan fund, and one third for such charitable purposes as it might select. The testator, however, wisely foresaw the possibility of the Beloit Foundation not being able to or not wishing to accept all or part of the bequest.

It is also clear that the testator elected to vary the emphasis of his bounty depending upon who was administering the loan fund. In referring to the situation where the Foundation was administering the fund, he stated that sums were to be loaned “to worthy persons, preferably residents of Beloit, Wisconsin, or Rock County, Wisconsin, to assist them in obtaining an education, especially at Beloit College and the Engineering School of the University of Cincinnati.”

Under the second contingency, the one that in fact occurred, the funds are to be given to the educational institutions “for the assistance of their respective students, preferably students from Beloit, Wisconsin, and Rock County, Wisconsin.” (Emphasis supplied.)

It is undeniable that the intent the testator expressed if the Foundation declined the fund, was to give the fund in equal shares to the colleges as loans to their students, giving preference, however, to students from the city and county of the testator’s residence.

This change of emphasis resulting from the happening of a foreseen contingency does not create an ambiguity or even an inconsistency in the will. The alternate provisions are to apply only in the event of distinct occurrences.

Nor is there occasion here to apply the doctrine of ey pres. That rule of construction is open to the court only in the event circumstances have made it impossible to carry out the testator’s charitable intent. This court has defined the principle thus:

“Very briefly stated, when a charitable purpose cannot be fulfilled according to its terms, equity will attempt to do the next-best similar charitable thing. This is the ey pres doctrine.” Saletri v. Clark (1961), 13 Wis. (2d) 325, 329, 108 N. W. (2d) 548.

This court in Estate of Bletsch (1964), 25 Wis. (2d) 40, 45, 130 N. W. (2d) 275, expressly approved the application of the ey pres doctrine upon appropriate occasions, but as set forth in the Restatement, 2 Trusts, p. 1208, sec. 399, cy pres is applicable only where the particular charitable purpose “becomes impossible or impracticable or illegal to carry out the particular purpose . . . .” The testator’s wishes are then carried out as nearly as may be possible {ey pres comme possible).

In the event that it is possible for the particular purpose to be carried out, the doctrine is not applicable.

“In such case the court will compel the trustees to carry out the particular purpose even though in the opinion of the court a more useful disposition of the property might be made.” Restatement, 2 Trusts, p. 1218, sec. 399.

In the instant case the doctrine cannot be applied, because it is perfectly possible and practicable to carry out the wishes of the testator in the fashion that he intended. The mere fact that the Beloit Foundation declined to administer the entire fund did not make it impossible for the testator’s wishes to be realized. Earl E. Berry, as an alternative in this contingency, directed that the loan fund was to be given to the colleges to be used as a loan fund. Cy pres is not applicable where the will provides for a gift over or an alternative disposition upon the impossibility of carrying out the primary method of effecting the testator’s intent. Only when the alternatives posed by the testator are exhausted and each of them have proved to be impossible, illegal, or impracticable, need the court resort to cy pres. In the absence of such necessity, it is error to invoke the doctrine — to do so would permit a court to substitute its judgment and discretion and dispositive intent for that of the testator. The doctrine of judicial cy pres can be invoked only for the purpose of effecting the testator’s intent, not to frustrate it.

The bequest to Beloit College and to the University of Cincinnati clearly has a legal purpose, perfectly possible to put into effect. The doctrine of cy pres cannot be used to prevent the transfer of two thirds of the trust residue to the colleges in equal shares. They are both educational institutions, having the grant in their charters of specific corporate powers to accept and administer such gifts. Neither institution has declined the gift nor an interest in the fund. Their acceptance of the bequest in the absence of an express renunciation is to be presumed. Estate of Mead (1938), 227 Wis. 311, 325, 277 N. W. 694, 279 N. W. 18. They are entitled to receive the funds as designated by Earl E. Berry.

The trial court arrived at the additional conclusion that circumstances “have so changed since the execution of the will by the testator so as to render impracticable and inexpedient the granting of loans,” and it therefore decreed that the fund was to be used for scholarships instead. The record is devoid of any evidence that would support this conclusion. The court also approached this problem by assuming that the funds were to be used only by students from Rock county, and therefore concluded that they could not be sufficiently utilized at those colleges. We have concluded above that the funds need not be limited in their use to Rock county students. They are limited to use by students at Beloit College or at the University of Cincinnati, with preference being given to Rock county students who may in the future attend those schools. The number of Rock county students at those institutions now or in the future is entirely immaterial. There is no evidence to show that these funds can or will not be utilized as the testator intended. There is, in fact, evidence to show that both institutions need additional funds for student-loan purposes. We cannot conclude as a matter of judicial notice that there is evidence of such a superfluity of funds available for loans to students as to make this method of student aid obviously unneeded, ineffectual, and impracticable. Rather, we can take judicial notice that loans are a common form of student assistance. If evidence that loans could not be used had been produced, the doctrine of cy pres might possibly have been invoked to direct the use of these funds for scholarships or other related student-aid purposes in order to carry out as near as possible the testator’s intent. It should be noted that such a utilization of cy pres would not defeat the right of the colleges to administer the funds, but would only alter the purposes for which the funds could be disbursed. There may well be a greater need for scholarship funds than for loans. Perhaps greater social good can be accomplished by using these funds for direct grants to students, but it is not for this or any court to determine the relative wisdom of a bequest and to substitute its judgment for that of the testator. The function of the court is to probate wills and not to write them.

We also conclude that the will makes outright gifts to the colleges and that trusts in the usual and technical sense were not created. The will provided that the “Earl E. Berry Student Loan Fund . . . shall be turned over” to the colleges. The expression “turned over” is clearly indicative of the relinquishment of any control by the executor and the vesting of ownership and control in the colleges. The clause expresses a donative intent, and we conclude that a gift results. A gift to a charitable or eleemosynary corporation does not create a trust in the technical sense.

“. . . where property is left by will to a charitable corporation, whether it may be used for the general purposes of the corporation or whether the devise or bequest is subject to restrictions as to its use, and the property is conveyed by the executor to the corporation, the corporation is not thereafter bound to account as if it were a testamentary trustee.” 4 Scott, Trusts (2d ed.), p. 2559, sec. 348.1.

Restatement, 2 Trusts, p. 1093, ch. 11, declares the general rule to be:

“Where property is given to a charitable corporation, a charitable trust is not created, even though by the terms of the gift the corporation is directed ... to use the property only for a particular one of its purposes.”

We therefore conclude, in accordance with the generally accepted statements of the law, that no trust was created that requires an accounting as a testamentary trustee.

In so holding, we are not unmindful of this court’s opinion in Estate of Rowell (1946), 248 Wis. 520, 522, 22 N. W. (2d) 604. The court there construed the following provisions of a will:

“I give and bequeath to the Salvation Army of Appleton, Wisconsin, the sum of ten thousand dollars ($10,000). It is my wish that this money be expended by the Salvation Army for the benefit of the needy people in the city of Appleton, Wisconsin.”

The court held that this clause created a charitable trust. The court concluded that if the words concerning the use of the money were mandatory rather than preca-tory, a testamentary trust is created. We do not find this distinction valid. It apparently rests on the assumption that the mandate of the testator can only be assured of enforcement by the trust device with its incumbent duties to account. This is not correct, since sanctions are available, even when there is not a formal trust, to enforce the directions of the testator. As the authors of the Restatement point out:

“The Attorney General can maintain a suit not only to enforce a charitable trust but also to compel a charitable corporation to apply property held by it to the charitable purposes for which it is given to the corporation.” Restatement, 2 Trusts, p. 1094, ch. 11. (See also 4 Scott, Trusts (2d ed.), p. 2753, sec. 391; Bogert, Trusts (2d ed.), p. 317, sec. 411; sec. 231.34, Stats., on the powers and duties of the attorney general in this regard.)

The New York case of St. Joseph's Hospital v. Bennett (1939), 281 N. Y. 115, 22 N. E. (2d) 305, illustrates the supervisory power of the attorney general over a charitable gift although no trust arose in the technical sense.

It should also be noted that Rowell, supra, has previously been explained by this court. It is not to be interpreted to mean that all testamentary gifts restricted to a particular purpose create technical trusts. As this court said in Estate of Silverthorn (1957), 274 Wis. 453, 457, 80 N. W. (2d) 430:

“Since the terms of the will fall short of what is usual in setting up a trust with individual trustees, but correspond exactly with what one would expect a competent draftsman to use in specifying a gift to the corporation, we are persuaded that the latter was intended.
“Estate of Rowell, 248 Wis. 520, 22 N. W. (2d) 604, cited by appellants, is not to the contrary. There the legatee designated by the will as construed by the court was not a corporation nor a legal entity, and therefore could not take title, so in order to sustain the bequest and effectuate the obvious wish of the testator, the court had to find a trust and appoint a qualified trustee to take title. Here the named beneficiary is a corporation and no such judicial intervention is required to carry out the testamentary intent.”

We have also considered-the language of this court in Estate of Briggs (1926), 189 Wis. 524, 208 N. W. 247, and Estate of Bletsch (1964), 25 Wis. (2d) 40, 130 N. W. (2d) 275. In Bletsch, supra, page 48, relying on Briggs, we said that:

“In a sense, it can perhaps be said that a charity always receives the gift in trust for its purposes.”

We pointed out, however, that such gifts are not necessarily in trust, but that, nevertheless, the doctrine of judicial cy pres is available, when necessary, in the event of a gift to a charity in the same manner that it would be applicable to a trust. Such gift, however, does not create a trust unless one is necessary to carry out the testator’s purpose.

There is no reason to assume that the testator’s direction will not be respected and enforced in Ohio as well as in Wisconsin even though a trust in the technical sense is not created.

It should be noted that Ohio Revised Code, secs. 109.28-109.33 and 109.99 provide for intervention by the attorney general.

It is also clear that the Beloit Foundation takes the remaining one third outright to “be used by it for such charitable purposes as it shall from time to time determine.” The Beloit Foundation, though renouncing the option to administer the two thirds of the estate that was denominated as the “Earl E. Berry Student Loan Fund,” specifically stated in its petition of July 14, 1964, that it “does accept the remaining one-third.” The articles of incorporation of the Beloit Foundation that are a part of the record indicate that the Foundation has the capacity to accept the gift and to administer the fund. It is authorized to receive and disburse money “for religious, charitable, scientific, literary, and educational purposes.”

Moreover, the express language of the will makes it manifest that it is the Foundation that shall determine the charitable purposes for which the gift from the Earl E. Berry trust shall be spent. There is nothing in the will that indicates that the testator intended that the Foundation’s discretion was to be influenced by the fact that the remaining two thirds of the estate was to be used for educational purposes. The bequest to the Foundation was separate and distinct.

By the Court. — Judgment and order reversed, with directions to enter judgment directing that one third of the trust fund be distributed to the Board of Trustees of Beloit College and that one third of the trust fund be distributed to the University of Cincinnati, in each case to be used by the institution as a loan fund for the assistance of its students, preferably students from Beloit, Wisconsin, and Rock county, Wisconsin; and that the remaining one third of the trust fund be distributed to Beloit Foundation, Inc., the income thereof and, in the discretion of the Foundation, portions of the principal to be used by it for such charitable purposes as it shall from time to time determine.

       Cases holding similarly included Will of Tousey (1951), 260 Wis. 150, 50 N. W. (2d) 454; Will of Walker (1962), 17 Wis. (2d) 181, 185, 116 N. W. (2d) 106; Estate of Zink (1962), 15 Wis. (2d) 527, 530, 113 N. W. (2d) 420.


author: Hallows, J.

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

      December 3, 1965

    January 7, 1966.

      For the plaintiff in error there was a brief and oral argument by Philip L. Padden of Milwaukee.
    For the defendant in error the cause was argued by Ben J. Wiener, deputy district attorney of Milwaukee county, with whom on the brief were Bronson C. La Fol-lette, attorney general, William A. Platz, assistant attorney general, and Hugh R. O’Connell, district attorney.

       Motion for rehearing denied, without costs, on April 12, 1966.

   Hallows, J.

The defendant initially contends the confessions should not have been admitted in evidence because he was denied counsel in violation of the Sixth amendment to the United States constitution which is made applicable to the states by the Fourteenth amendment. Gideon v. Wainwright (1963), 372 U. S. 335, 342, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799. This contention of the defendant raises an Escobedo type of problem. The defendant claims he asked for counsel during the interrogation after his arrest and the police denied his request and additionally argues if we find he did not request counsel, we should reconsider our interpretation of Escobedo and follow United States ex rel. Russo v. New Jersey (3d Cir. 1965), 351 Fed. (2d) 429, which excluded a confession made during the accusatorial stage of the interrogation although no request for counsel was made. Recently in Neuenfeldt v. State, ante, p. 20, 138 N. W. (2d) 252, we reconsidered our interpretation of Escobedo as stated in Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169, and in State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753. We there held that Escobedo should be confined to its facts including the request for counsel and its denial. Russo, which applied Escobedo retrospectively, was discussed and its doctrine rejected with the statement that this court would adhere to its prior interpretation until the supreme court of the United States made a further pronouncement on the problem which it now has under consideration.

Whether the defendant requested counsel during interrogation and was refused by the police is a mixed question of fact and constitutional law which was passed upon by the trial court at the hearing on the admissibility of the confession. But since the question is whether a constitutional right has been violated, it is the subject of our independent determination on this review. Ashcraft v. Tennessee (1944), 322 U. S. 143, 64 Sup. Ct. 921, 88 L. Ed. 1192; Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.

The evidence as is usual on such an issue is in conflict. Under the defendant’s version he asked about 2 p. m. to telephone his mother so he might get an attorney and was put off until after he made a confession. His mother had no phone and he did not live at home, but the defendant explained he wanted to call a neighbor who would reach his mother. His testimony as to which detectives said what is somewhat contradictory. On the other hand the testimony of the detectives is sufficiently convincing although minimum on this important point. One detective did not recall the defendant’s requesting the use of the phone and the other testified the request was made after the defendant confessed. It is clear the defendant testified he knew he had a right to the advice of counsel and he admits he was advised of his constitutional right to remain silent. There is dispute in the evidence, however, whether the defendant was advised he could have counsel. At the conclusion of the testimony, the trial judge found the confession was a free and deliberate choice of the defendant, but more important on this issue, that under the circumstances the confession was “constitutionally antiseptic and not in violation of any of his constitutional rights.” Thus while the trial court did not make a specific finding that a request was not made, it did make an ultimate fact-finding which we think under the circumstances negated the making of the request for counsel. From the record it is apparent such effect was understood by the defendant. The determination of the question of voluntariness turns primarily on credibility, and on this record we are inclined to agree with the finding of the trial court. We suggest, however, that for the aid of this court in its determination of a constitutional question and to avoid a possible hearing on collateral attack, that trial courts make specific and complete findings of the facts underlying a constitutional question. State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753.

The defendant next contends the confessions were not his free and voluntary act and were obtained by mental coercion and to admit them in evidence was violation of his right against self-incrimination guaranteed by thé Fifth amendment of the United States constitution. In considering the voluntariness of a confession in reference to the Fifth amendment now applicable to the states, the federal standard must be used to determine the deliberateness of choice. In Neuenfeldt, supra, we pointed out that in State v. Hoyt (1964), 21 Wis. (2d) 284, 124 N. W. (2d) 47, 128 N. W. (2d) 645, “a confession to be saved from constitutional contamination must be the result of a deliberateness of choice under the decisions of the United States supreme court. This concept that a confession to be admissible in evidence must be the voluntary product of a free and unconstrained will was followed in Pulaski v. State (1964), 24 Wis. (2d) 450, 129 N. W. (2d) 204, and State v. Brown (1964), 25 Wis. (2d) 413, 130 N. W. (2d) 760. Although the rule of voluntariness is easy to state, the determination of what is a voluntary confession in a given fact situation may be difficult. In evaluating the facts for such purpose, the principle adopted by the United States supreme court is to consider the Totality of the circumstances’ — all the facts surrounding the making of the confession. Fikes v. Alabama (1957), 352 U. S. 191, 77 Sup. Ct. 281, 1 L. Ed. (2d) 246.”

The individual factors affecting voluntariness and contributing to the totality of the circumstances include denial of rights, questioning, threats, status of accused, nature of coercion, second confession, special techniques and previous experience with police. Defender Newsletter, Vol. II, No. 5, Sept. 1965. The process of determining voluntariness is one of weighing the circumstances of the police pressure against the power of resistance of the person confessing. What is overpowering to a weak mind or a first offender may be ineffectual against an experienced criminal. Stein v. New York (1953), 346 U. S. 156, 185, 73 Sup. Ct. 1077, 97 L. Ed. 1522.

The defendant’s claim is based upon two items of evidence; first, that the detectives just prior to the oral confession confronted the defendant with a package of cigarettes and told him the package had fingerprints on it which could be analyzed and second, in order to get the written confession, that the detective threatened to take his girl friend into custody on a charge she and the defendant were living together. The defendant admits he knew he was entitled to counsel and the police advised him of his constitutional right to remain silent. He was not subjected to any threats of physical abuse and was not promised any favors for confessing. There is some conflict in the testimony over whether the defendant was given any food. The defendant claims he was not given any but allowed to drink water and smoke cigarettes. A detective testified the defendant was given a sandwich and a cup of coffee. We think this factor is of no great significance under the circumstances. Under defendant’s version there was no disregard by the police of a basic need for nourishment which if unsatisfied contributed to coercion. The interrogation lasted at the most three and a half hours and was not vigorous or pressing. The defendant was not questioned relentlessly or by relays of interrogators.

The factors of psychological pressure, other than the package of cigarettes and the girl-friend incident, were the usual “known hostile forces” found in police-station interrogations which are best described in Culombe v. Connecticut (1961), 367 U. S. 568, 575, 81 Sup. Ct. 1860, 6 L. Ed. (2d) 1037, as: “In the police station a prisoner is surrounded by known hostile forces. He is disorientated from the world he knows and in which he finds support. He is subject to coercing impingements, undermining even if not obvious pressures of every variety.” The defendant who had been convicted twice before, once for robbery and once for shoplifting, was a man of twenty-two years of age. The record does not show the extent of his education, but it does indicate he understood his constitutional rights. The statements of the police respecting the fingerprints on the package of cigarettes while ac-cusatorial in nature did not constitute such a threat as to control and coerce the mind of the defendant and render the confession involuntary. One must distinguish between motivation and a compelling overpowering mental force. The line of demarcation between coercion and voluntariness is hard to draw and perhaps only a sense of fairness and justice rather than a philosophical approach can find it in the “totality of the circumstances.”

We think the statement in reference to the girl friend was motivation more than coercion because the defendant in his testimony stated he considered it was a threat more to her than to him. This threat is dangerously close to the threats disapproved in Lynumn v. Illinois (1963), 372 U. S. 528, 83 Sup. Ct. 917, 9 L. Ed. (2d) 922 (she would be disentitled to public assistance (ADC) and would lose custody of her child) ; in Rogers v. Richmond (1961), 365 U. S. 534, 81 Sup. Ct. 735, 5 L. Ed. (2d) 760 (to take accused’s wife into custody); and in Haynes v. Washington (1963), 373 U. S. 503, 83 Sup. Ct. 1336, 10 L. Ed. (2d) 513 (refusal to allow suspect to call his wife). But we consider the threat standing in context with the other facts insufficient to render the confession coerced.

It is argued the trial court erred in submitting the question of voluntariness of the confession to the jury. At the time of the trial, Jackson v. Denno (1964), 378 U. S. 368, 84 Sup. Ct. 1774, 12 L. Ed. (2d) 908, 1 A. L. R. (3d) 1205, had just been decided but this court had not decided State ex rel. Goodchild v. Burke, supra, wherein we adopted the orthodox rule for the procedural determination of the voluntariness of the confession required by the Fourteenth amendment. In Jackson the court approved two rules, the orthodox where a separate hearing on the issue of voluntariness is held before the trial judge alone out of the presence of the jury and the court’s determination is final, and the Massachusetts rule under which the court makes an initial determination of voluntariness and if the confession is found voluntary the question is again submitted to the jury. The trial court followed the Massachusetts rule not knowing which procedure this court would adopt. Any error in submitting the question of voluntariness to the jury under the Massachusetts rule was not prejudicial since the court had found the confession to be voluntary. We think the defendant’s contention concerning the verbalizing and interweaving the separate issues of voluntariness and trustworthiness in the instructions is not well taken because no objections were made at the trial.

The defendant contends his constitutional rights were violated because he was not promptly brought before a magistrate after his arrest and for this reason his confessions should have been excluded. Reliance is placed upon the McNabb-Mallory rule which defendant argues should now be applied as a constitutional requirement in state criminal prosecutions. The McN abb-Mallory rule is basically an exclusionary rule not based upon any constitutional right of the accused or involuntariness of the confession. The rule was first enunciated in McN abb v. United States (1943), 318 U. S. 332, 63 Sup. Ct. 608, 87 L. Ed. 819, and provided for the exclusion of a confession although voluntary which is made during an illegal detention due to the failure promptly to bring the prisoner before a committing magistrate. The rule rests upon the supreme court’s superintending authority over the administration of federal criminal justice and in terms of “without unnecessary delay” was adopted as Rule 5 (a) of the federal criminal rules of procedure. In Mallory v. United States (1957), 354 U. S. 449, 77 Sup. Ct. 1356, 1 L. Ed. (2d) 1479, McNabb was reaffirmed and applied as a federal criminal-procedure rule.

In 1959 we held the McNabb rule was not binding upon the state by virtue of the due-process clause of the Fourteenth amendment. State v. Bronston (1959), 7 Wis. (2d) 627, 97 N. W. (2d) 504, 98 N. W. (2d) 468. Later it was pointed out in Culombe v. Connecticut (1961), 367 U. S. 568, 591, 81 Sup. Ct. 1860, 6 L. Ed. (2d) 1037, that the rule was not made obligatory upon the states as a requirement of the Fourteenth amendment which did “not prohibit a state from such detention and examination of a suspect as, under all the circumstances, is found not to be coercive.” The court further stated it was impossible in enforcing the Fourteenth amendment to attempt precisely to delimit or to surround with specific or all-exclusive restrictions the power of interrogation allowed to state enforcement officers in obtaining confessions. It was pointed out no single litmus-paper test for constitutionally impermissible interrogation had been evolved and this included extensive cross-questioning, undue delay in arraignment, failure to caution a prisoner of his rights and refusal to permit communication with friends and legal counsel.

But it is argued that constitutional concepts are continually changing and the tendency of the law is now to impose constitutional rights guaranteed by the Bill of Rights upon the states through the operation of the Fourteenth amendment. Reliance by way of illustration is placed upon Mapp v. Ohio (1961), 367 U. S. 643, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081, and Ker v. California (1963), 374 U. S. 23, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726 (the Fourth amendment protecting against unreasonable search and seizure); Malloy v. Hogan (1964), 378 U. S. 1, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653 (the Fifth amendment, protection from compulsory self-incrimination — see case for other examples); Pointer v. Texas (1965), 380 U. S. 400, 85 Sup. Ct. 1065, 13 L. Ed. (2d) 923 (the Sixth amendment, right of an accused to confront witnesses); Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799 (the Sixth amendment, right to aid of counsel).

Because the McNabb rule has no roots in the Bill of Rights it cannot be “incorporated” or “absorbed” in the due-process clause of the Fourteenth amendment. If a voluntary confession is to be inadmissible in evidence because it was made while under police detention it must be upon the ground that the length of detention was a deprivation of the person’s liberty without due process of law. We are not here considering the length of detention as a factor of coercion which would render the confession or statements involuntary. For such purpose the view is general that if the detention is for a proper purpose and the interrogation is expeditiously carried out, the detention is not unreasonable in length or coercive. State v. Fransisco (1950), 257 Wis. 247, 43 N. W. (2d) 38; Kiefer v. State (1950), 258 Wis. 47, 44 N. W. (2d) 537; State v. Babich (1951), 258 Wis. 290, 45 N. W. (2d) 660.

When the question of the unreasonableness of detention has been raised in suits to recover for false imprisonment, this court has held it is the duty of the arresting officer to take the person arrested before a magistrate without unreasonable delay. Schoette v. Drake (1909), 139 Wis. 18, 120 N. W. 393. The Restatement, 1 Torts, p. 315, sec. 136, states it is misconduct “If the actor, having obtained the custody of another by a privileged arrest . . . (c) fails to use due diligence to take the other promptly before a proper court . . . .” In Geldon v. Finnegan (1934), 213 Wis. 539, 252 N. W. 369, in disapproving instructions that without unreasonable delay meant instantly or as soon as it was practicable and usually meant not longer than twenty-four hours after the arrest, this court said “forthwith” like “reasonable time” was a relative term deriving meaning from the circumstances; but if the person was being detained for the purpose of arrest it was the duty of the police to take him before an examining magistrate as soon as the nature of the circumstances would reasonably permit. And, in Peloquin v. Hibner (1939), 231 Wis. 77, 285 N. W. 380, another false-imprisonment case, this court held the detention of a suspect, arrested without a warrant, from Sunday night to Tuesday morning was not unreasonable because the police were investigating with due diligence and were entitled to the time to determine whether to make a formal complaint against the plaintiff or release her from custody.

While the McNabb-Mallory rule makes it improper to delay a suspect “in order to carry out a process of inquiry which lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt,” the due-process clause does not foreclose completely the police from interrogating the person after arrest and before taking him before a magistrate. But, the right to interrogate after arrest is limited and must be for the purpose of determining whether to release the suspect or if he has been arrested without a warrant to make a formal complaint. An arrest upon warrant would seem to presuppose sufficient evidence and its purpose is to cause the arrested person to be brought before a magistrate, sec. 954.04, Stats., so that the criminal process of determining guilt or innocence can commence. A detention for a period longer than is reasonably necessary for such limited purpose violates due process and renders inadmissible any confession obtained during the unreasonable period of the detention.

In many cases of interrogation the person is arrested either upon a warrant or without one upon probable cause. One may not be arrested upon suspicion and, of course, there is also a degree of difference between probable cause for arrest and probable cause to detain on a bind over. While probable cause to arrest may in this state rest upon information and belief, sec. 954.02, Stats., we must point out as the United States supreme court did, “It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on ‘probable cause.’ ” Mallory v. United States, supra (p. 456). While one may be detained by the police and interrogated to secure sufficient evidence to either charge him with a crime or to release him, the police cannot continue to detain an arrested person to “sew up” the case by obtaining or extracting a confession or culpable statements to support the arrest or the guilt. See on this problem of unreasonable detention, Note, 1960 Wisconsin Law Review, 164.

The usual investigatory methods of the police lend themselves to the search for a confession and we point out again as we did in Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N. W. (2d) 625, that long detentions are looked upon with disfavor by this court and seriously impair the voluntariness of the confession from the standpoint of psychological aspect of the usual police-station hazards. We find no justification in holding a person under investigation incommunicado no matter for what length of time. Such device smacks of the star chamber and is an indication in itself of overbearing on the part of the police. Delaying of a request of an accused to talk to his family or friends or his attorney should be considered strong evidence of overbearing pressure to obtain a confession or inculpatory statements. See sec. 946.75, Stats., making it a crime to deny one in custody the right to consult his attorney.

In the instant case the defendant was arrested just before noon and was questioned in the afternoon for about three and a half hours. We do not think this length of questioning or detention was so unreasonable as to violate the due-process clause of our constitution. Sec. 8, art. I, Wisconsin constitution, provides that no person shall be held to answer for a criminal offense without due process of law. Such length of detention does not violate fundamental fairness or fair play in the criminal process under our accusatorial system. In this respect the instant facts are not unlike those in State v. Bronston (1959), 7 Wis. (2d) 627, 97 N. W. (2d) 504, 98 N. W. (2d) 468, where we held on a similar argument the delay did not violate the accused’s constitutional rights.

The record discloses no reason for holding the defendant from 4:45 in the afternoon after he made his confession until the next day before taking him before the county court. Detention should not be at the pleasure or convenience of the police. If one of the branches of the county court were open, the defendant should have been taken before the judge so that he would have had an opportunity to be let out on bail pending a preliminary hearing, thus avoiding being jailed overnight.

On the record before us we must conclude the conviction should be affirmed.

By the Court. — Judgment affirmed.

        Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977.


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

text:
    Meihost (Elsie E.), Plaintiff and Appellant, v. Meihost (William F.), Defendant: Mackai and another, Defendants and Respondents. Meihost (William F.), Plaintiff and Appellant, v. Mackai and another, Defendants and Respondents.

      December 1, 1965

    January 12, 1966.

      For the appellants there was a brief by Kersten & McKinnon of Milwaukee, for Elsie E. Meihost, and Wolf, Haese, Emmert & Wilking of Milwaukee, for William F. Meihost, and oral argument by George P. Kersten and William J. Haese.

      For the respondents there was a brief by Gibbs, Roper & Fifield of Milwaukee, and oral argument by Richard S. Gibbs.

       Motion for rehearing denied, with costs, on March 1, 1966.

   Wilkie, J.

Appellants predicate their action for damages solely on the ground that respondent violated Milwaukee ordinance 101-112. However, because the question of liability stemming from leaving keys in an unattended auto should be completely resolved, the complaint should be interpreted as also raising the companion issue of whether respondent is liable on a common-law negligence theory irrespective of the breach of any ordinance. Accordingly, the first two issues presented on this appeal, both of which are ones of first impression in this state, are:

(1) Was the respondent, because of a violation of the Milwaukee ordinance, negligent for leaving a key in his car?

(2) Was the respondent, irrespective of the ordinance, guilty of common-law negligence ?

Liability Under the Ordinance.

Appellants contend that respondent’s failure to remove the ignition key from the car in violation of the ordinance constituted causal negligence as a matter of law, or at least presented a jury question on negligence and cause. Generally, where a statute is designed to protect a class of persons from a particular type of harm, a violation of the statute which results in that type of harm to someone in the protected class constitutes negligence per se. Thus, if Milwaukee ordinance 101-112 was a safety measure adopted to protect the public against the negligent driving of automobile thieves, the breach of the ordinance will amount to negligence per se in this instance.

A number of states have considered whether an enactment like Milwaukee’s was a safety measure. In Ney v. Yellow Cab Co. the Illinois statute not only required that the key be removed from the ignition, but also prohibited stopping on grades “without effectively setting the brake . . . and turning the front wheels to the curb or side of the highway” and set fifteen as the minimum driving age. In finding this provision a safety statute, the court reasoned that the brake and wheel requirements are hardly theft deterrents and that the driving-age proviso was to prevent the public from being exposed to inexperienced and immature drivers. Because of the differences in the statutory language, Ney is distinguishable.

The same is true of Justus v. Wood wherein a Tennessee statute required the turning of the front wheels toward the curb and the setting of the brakes as well as locking the ignition. In Ross v. Hartman a District of Columbia ordinance provided that:

“. . . no person shall allow any motor vehicle operated by him to stand or remain unattended on any street or in any public place without first having locked the lever, throttle, or switch by which said motor vehicle may be set in motion.”

The court held that it was designed to promote safety in the streets and not to prevent thefts.

In Maggiore v. Laundry & Dry Cleaning Service a New Orleans ordinance requiring the key to be removed to prevent the vehicle from being set in motion was considered. It was held that the ordinance served a purpose consistent with the protection of the public.

However, courts in Minnesota, in Anderson v. Theisen, and in Massachusetts, in Sullivan v. Griffin, have assumed that similar enactments were anti-theft measures.

Still a third view is that this type of ordinance is primarily a theft deterrent, but is also a safety device. Thus:

“While the purpose of the ordinance is primarily for the protection of car owners themselves and as an aid in proper law enforcement against theft and pilferage, however, to a limited extent, it is also a safety measure intended to protect the users of the public streets and highways at large, of whom appellant was one.”

It can be seen that there is no prevalent view among the other jurisdictions as to the purpose of similarly worded statutes or ordinances. What then is the purpose of the Milwaukee ordinance ?

There are two principal reasons why the Milwaukee ordinance should be deemed an anti-theft rather than a safety measure. First, it was enacted by the city of Milwaukee pursuant to the provisions of sec. 66.95, Stats., which authorizes the enactment of local ordinances. That enabling statute provides:

“Prohibiting operators from leaving keys in parked MOTOR vehicles. The governing body of any city may by ordinance require every passenger motor vehicle to be equipped with a lock suitable to lock either the starting lever, throttle, steering apparatus, gear shift lever or ignition system; prohibit any person from permitting a motor vehicle in his custody from standing or remaining unattended on any street, alley or in any other public place, except an attended parking area, unless either the starting lever, throttle, steering apparatus, gear shift or ignition of said vehicle is locked and the key for such lock is removed from the vehicle; and provide forfeitures for such violations.”

The legislative history of sec. 66.95, Stats., indicates that it was designed as a crime deterrent — particularly juvenile theft — and not to safeguard third persons from the conduct of thieves. Sec. 66.95 was adopted in 1953. A letter dated January 26, 1953, sent by then Milwaukee Police Chief John W. Polcyn to Senator Bernhard Gettel-man, which can be found in the legislative reference library bill file, begins “Knowing of your sincere interest in crime prevention and in law enforcement agencies” and continues:

“Should this Bill become a law it will serve several purposes. 1. It would add greatly toward the prevention of automobile thefts thereby saving the owners a great deal of expense and inconvenience and assuring them of finding their automobiles where they parked them. 2. It would take away the temptation from teen-agers to take these automobiles for joy rides thereby preventing serious accidents and in many cases loss of life. 3. It would save the heartaches of hundreds of fathers and mothers whose sons were arrested for automobile larceny thereby bringing disgrace upon the family. I am sincere when I say that this sort of legislation is very badly needed and would be of great benefit to the State in crime prevention.”

Polcyn notes certain opposition to the bill in the rural communities, and attributes this to a misunderstanding inasmuch as only cities would be affected. He suggests an amendment removing farm tractors from coverage and explains that violators would be issued “regulation parking violation summons” and fined accordingly. Pol-cyn concludes:

“It is further my opinion that this Bill would act as an educational program to impress upon the automobile owners their responsibilities in protecting their own property.”

Although appellants place much weight on the “preventing serious accidents and in many cases loss of life” language, it is apparent from a reading of the letter as a whole that an anti-theft rather than a safety measure was contemplated. Polcyn was primarily concerned with “crime prevention,” the elimination of “automobile thefts,” sparing parents the grief of having sons “arrested for automobile larceny,” and impressing upon car owners “their responsibilities in protecting their own property.” In addition, since the threat posed to the public by a tractor thief is inconsequential, the proposal to exclude them from the purview of the statute indicates that the legislation was aimed at preventing thefts rather than protecting third persons.

Second, sec. 66.95, Stats., is “enabling legislation” and merely authorizes the city governing body to levy forfeitures for violations of ordinances enacted pursuant to it and fails to even mention civil actions. Interpreting the statute (and therefore the ordinance) as a public-safety measure would in effect change the general common-law rule that a car owner is not liable for damages caused by a thief, and this should not be done in the absence of a clear and unambiguous legislative fiat.

Thus, we conclude that the Milwaukee ordinance 101-112 is anti-theft legislation and that, therefore, respondent was not negligent for breaching it. We recognize that this result is contrary to Ross v. Hartman, supra, but we simply disagree with that case which, as Prosser says, has gone “to an extreme.”

Common-Law Negligence.

In Wisconsin “harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence.” Accordingly, respondent was guilty of common-law negligence if harm, not necessarily the particular harm that actually occurred, could have been reasonably foreseen as probable by a person of ordinary prudence under like circumstances. The mere possibility of harm is insufficient to establish negligence. According to his affidavit, respondent had parked his car in a residential area and removed the key from the ignition, although there was a key secreted in a band-aid box in the glove compartment. There were no allegations in the complaints that the neighborhood was such that he should have been alerted to the danger of theft. Under the particular circumstances of the instant case, respondent could not reasonably anticipate the theft that occurred and he could not reasonably foresee that harm would result to the plaintiffs. Therefore, he is not negligent.

Assuming that the key had been left in the ignition it may be that such conduct would be negligence on the part of the owner but, even so, public-policy considerations direct that, under most circumstances, the owner not be held liable for such harm as would result by reason of the injury of persons in a collision caused by the negligent driving of the thief of the car. Under most circumstances, allowance of recovery would place too unreasonable a burden upon the owners (or others having legal custody) of motor vehicles. In this respect, we agree with the conclusion reached by the supreme court of California in Richards v. Stanley, in which it held, under facts essentially similar to those here assumed, that it would be incongruous to hold the car owner responsible for the negligence of the driver where the car was taken without permission while ordinarily exonerating him for similar acts where he has actually loaned his vehicle to the one driving.

By the Court. — Judgments affirmed.

Currie, C. J.

(concurring). I concur in the opinion of the court, except that I have some reservation with respect to the last paragraph thereof.

The learned trial court grounded its decision, in holding no liability on the part of Mackai existed, on intervening cause. Intervening cause, however, does not relieve the first actor from liability for his act of negligence if such act is a substantial factor in causing the accident unless it is held to be a superseding cause. In order for an intervening cause to be a superseding cause, the court must invoke a policy determination that the accident causing harm was so beyond the reasonable expectation of the first actor, as to make it unconscionable to impose liability. The guidelines to be applied by the court in determining that the intervening cause was a superseding cause are those set forth in Restatement, 2 Torts, p. 1196, sec. 447. This section of the Restatement, provides:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
“ (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
“ (c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

It would be difficult to contend that a car owner who leaves the key in the ignition lock of a car parked on a public street is not negligent. However, between this act on the part of the car owner and the accident, which results from a thief stealing the car and negligently operating it so as to cause an accident, two intervening causes must have occurred. The first is the thief’s act in stealing the car, and the second is his negligent operation of it resulting in the accident. Under the quoted guidelines of the Restatement, the first of these two intervening causes ought not be held to be a superseding cause because the car owner should have realized that, by leaving the key in the ignition lock, some person might steal the car. The second intervening cause, i. e., the thief’s negligent operation of the stolen vehicle, presents a much closer question. It could well be argued that such negligent operation is such an act that a reasonable person in the owner’s position would not regard it as highly extraordinary.

       As was done in Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis. (2d) 344, 117 N. W. (2d) 347.

       Prosser, Law oí Torts (hornbook series, 3d ed.), p. 191, sec. 35.

        Farmers Mut. Automobile Ins. Co. v. Gast, supra, footnote 2, at page 348. This ease recognized exceptions in the rule which are not relevant here. Bentson v. Brown (1925), 186 Wis. 629, 203 N. W. 380, where driver was found to have violated specific statutes imposing rules of the road. Sharon v. Winnebago Furniture Mfg. Co. (1910), 141 Wis. 185, 124 N. W. 299. Employment of a boy under sixteen years of age to operate a saw was held to be a violation of statute and negligence as a matter of law.

       (1954), 2 Ill. (2d) 74, 76, 117 N. E. (2d) 74, 76.

       (1961), 209 Tenn. 55, 348 S. W. (2d) 332.

       (D. C. Cir. 1943), 139 Fed. (2d) 14, certiorari denied, 321 U. S. 790, 64 Sup. Ct. 790, 88 L. Ed. 1080.

         Ross v. Hartman, supra, footnote 7, at page 14.

       (La. App. 1933), 150 So. 394.

       (1950), 231 Minn. 369, 43 N. W. (2d) 272.

       (1945), 318 Mass. 359, 61 N. E. (2d) 330.

        Hersh v. Miller (1959), 169 Neb. 517, 99 N. W. (2d) 878.

       Id. at page 520.

       Ch. 529, Laws of 19537

       Although none of the parties contends that the letter cannot be properly considered (appellants and respondents each actually rely on it to sustain their respective positions) it is nonetheless clear that this court can utilize correspondence from nonlegislators in ascertaining legislative intent. E. g., State ex rel. Reynolds v. Circuit Court (1961), 15 Wis. (2d) 311, 112 N. W. (2d) 686, 113 N. W. (2d) 537 (memo from Milwaukee county corporation counsel) ; Milwaukee v. Public Service Comm. (1960), 11 Wis. (2d) 111, 104 N. W. (2d) 167 (instructions from counsel of large public utility). See Liddle, Comment, Statutory Construction — Legislative Intent — Use of Extrinsic Aids in Wisconsin, 1964 Wisconsin Law Review, 660.

         E. g., Bennett v. Arctic Insulation (9th Cir. 1958), 253 Fed. (2d) 652; Richards v. Stanley (1954), 43 Cal. (2d) 60, 271 Pac. (2d) 23 (involving a statute which by express terms was not to have a bearing on a civil suit); Curtis v. Jacobson (1947), 142 Me. 351, 54 Atl. (2d) 520; Reti v. Vaniska, Inc. (1951), 14 N. J. Super. 94, 81 Atl. (2d) 377; Lotito v. Kyriacus (1947), 272 App. Div. 635, 74 N. Y. Supp. (2d) 599.

         Estate of Phalen (1928), 197 Wis. 336, 222 N. W. 218.

       Prosser, Law of Torts (hornbook series, 3d ed.), p. 198, sec. 35.

         Szep v. Robinson (1963), 20 Wis. (2d) 284, 291, 121 N. W. (2d) 753. See also Radloff v. National Food Stores, Inc. (1963), 20 Wis. (2d) 224, 121 N. W. (2d) 865, 123 N. W. (2d) 570; Wisconsin Power & Light Co. v. Columbia County (1962), 18 Wis. (2d) 39, 117 N. W. (2d) 597; Mondl v. F. W. Woolworth Co. (1961), 12 Wis. (2d) 571, 107 N. W. (2d) 472.

        Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 182, 77 N. W. (2d) 397; Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. (2d) 29.

        Wisconsin Power & Light Co. v. Columbia County, supra, footnote 19.

        Schilling v. Stockel (1965), 26 Wis. (2d) 525, 532, 133 N. W. (2d) 335.

        Supra, footnote 16.

       See Canzoneri v. Heckert (1936), 223 Wis. 25, 269 N. W. 716; Crossett v. Goelzer (1922), 177 Wis. 455, 188 N. W. 627.

        Strahlendorf v. Walgren Co. (1962), 16 Wis. (2d) 421, 114 N. W. (2d) 823.

        Strahlendorf v. Walgren Co., supra; Ryan v. Cameron (1955), 270 Wis. 325, 71 N. W. (2d) 408. Cf. Schilling v. Stockel (1965), 26 Wis. (2d) 525, 133 N. W. (2d) 335.

        Ryan v. Cameron, supra; Dombrowski v. Albrent Freight & Storage Corp. (1953), 264 Wis. 440, 59 N. W. (2d) 465.

       Par. (a), Restatement, 2 Torts, p. 1196, see. 447.

         Par. (b), Restatement, 2 Torts, p. 1196, see. 447.


author: Wilkie, J. Hallows, J.

text:
    Chrislaw and others, Appellants, v. Village of Clinton, Respondent.

      January 3

    February 1, 1966.

      For the appellants there was a brief by Wickhem, Consigny & Sedor of Janesville, and oral argument by Gilbert D. Sedor.

    For the respondent there was a brief by Geffs, Geffs, Block & Geffs of Janesville, and oral argument by Jacob Geffs.

   Wilkie, J.

Two issues are presented on this appeal:

First, did respondent acquire a right-of-way to discharge effluent over appellants’ land and, if so, what is the extent of that right-of-way?

Second, did the flow of effluent constitute a nuisance?

Right-of-Way.

The trial court determined that respondent has acquired “use of the surface drain as well as the underground tile drain as a right-of-way” under sec. 144.05 (2), Stats. This section provides:

“The city or village or the owner of land through which the drain is constructed may apply to the circuit court of the county in which the land is located to determine the damages, if any. No injunction against the use shall be granted until the damages are finally determined and payment refused. Unless within six months after the system is completed the owner of the land shall institute such proceedings he shall be barred. The proceedings shall be according to chapter 32 of the statutes, so far as applicable.”

Although appellants’ brief is devoted exclusively to a discussion of the nuisance issue, appellants’ counsel has indicated on oral argument that the trial court erred in his determination about respondent’s right-of-way and appellants contend that the right-of-way was limited to an underground right-of-way over the tile.

This court has recognized that sec. 144.05 (2), Stats., would be applicable to “property . . . taken for ditches, drains, etc.,” in the construction of sewage systems. Since sub. (1) refers to a “drain constructed pursuant to law” and sub. (2) authorizes a landowner of “land through which the drain is constructed” to seek damages by way of inverse condemnation provided he institutes his action therefor within six months after the “system is completed,” it might be argued that the legislature intended sec. 144.05 to be applicable only where a constructed drainage system exists and not to cases like the present, where the effluent flows freely onto the land surface. Put another way, it could be said that only situations where sewage is discharged into preexisting drains or ditches or into drains or ditches specifically developed for the purpose are covered by the statute, and that instances where the waste is just dumped over the land are not within its purview.

But there is little difference between the municipality digging a ditch and letting the waste drain (which would clearly be within the scope of sec. 144.05, Stats.) or allowing the discharge to carve out its own canal.

In Witzel a plan had been approved to run effluent from the Madison Metropolitan Sewerage District through Badfish creek for eventual discharge into the Rock river. The court ruled that if, as a result of the future discharge of effluent by the district into the creek, the Witzels (adjoining riparian landowners) should sustain damage by reason of a taking of additional land, the Witzels would then have rights of inverse condemnation under sec. 144.05, Stats.

Furthermore, a holding that sec. 144.05, Stats., does not apply to a ground-drain situation could result in questionable legality of parts of the systems of discharge of treated sewage established by many municipalities which undoubtedly employ this technique as part of those systems.

Nuisance.

The trial court found that the effluent did not constitute a nuisance in regard to noxious odors. (This finding is not contested here.)

The trial court also failed to find a nuisance created by the village caused by the amount of effluent poured into the right-of-way and overflowing onto the Chrislaw farmland.

It is settled that:

‘A municipality is answerable in damages if it discharges the outflow of a sewer, or a system of sewerage upon the property of another, and this upon the ground that such discharge constitutes a private nuisance for which action may be maintained by the person injured. . . . ’ ”

In this respect there is a private nuisance during the period when the excess effluent is temporarily sufficient to exceed the amount of effluent normally carried by the right-of-way and the excess causes temporary damage to the surrounding land and before the invasion of the land is more than temporary so that the additional land of the adjoining property owner is in reality taken for the drain with the consequent right of inverse condemnation arising in that property owner under sec. 144.05, Stats.

The evidence fully supports the trial court’s finding that the use made in discharging effluent into the right-of-way, as found by the court, had always been within the bounds of that right-of-way. There was a time, soon after 1958, when the present swath was cut through the Chrislaws’ land and the taking of land that accompanied the expanded use of the drain gave rise to a claim by the Chrislaws for inverse condemnation under sec. 144.05, Stats. But the Chrislaws sought no relief under the statute and can have no other relief except if there is a nuisance notwithstanding the right-of-way.

Thus, no nuisance was established.

On the issue of damages, appellants did introduce evidence demonstrating the loss they sustained by being unable to plant corn on the land in question and also the diminution of the value of the land as such. A suit against the Scherer company, which had also discharged waste onto appellants’ property through the railroad ditch commencing in 1958, was settled for an undisclosed amount. Under the rule of Mitchell Realty Co. v. West Allis, that one of two or more contributors to a nuisance cannot be held liable as a joint tort-feasor, but only for its share of damages, appellants cannot succeed on their damage claim. This is because they failed to prove how much of the damages, if any, was attributable to the respondent.

There may come a time when the amount of effluent discharged into the right-of-way will be enough to overflow and cause some temporary further damage to the Chrislaw land. If so, the Chrislaws will have an action for nuisance. If this overflow is sufficient so that the channel cut through the Chrislaw land is more than the channel found in the instant ease there will be a taking of Chrislaw land so as to give rise to a cause of action for inverse condemnation under sec. 144.05, Stats. To minimize these possibilities the village should take steps to repair the tile drain and to improve the efficiency of the flow of effluent through the right-of-way.

Else, it appears that this controversy, much like Jarndyce v. Jarndyce, in Charles Dickens’ Bleak House, may well wend its way into the courts again.

By the Court. — Judgment affirmed.

Hallows, J.

(dissenting in part). I dissent to the part of the opinion which holds the respondent has acquired under sec. 144.05 (2), Stats., a right-of-way to the use of the surface of the appellants’ land. That section does not contemplate, nor should it, that a municipality by its wrongful acts, acts which would otherwise constitute a nuisance, should acquire a right-of-way over the surface of a private owner’s land. The statute contemplates that a drain is constructed through private property. The majority sees little difference between digging a ditch, letting the waste drain or allowing the discharge to carve out its own canal; that may be so, but the statute still calls for the construction of a drain. And, such construction would prevent the discharge from overflowing the land or from carving out its own canal. The present overflow is caused primarily because of the failure of the village to repair the drain tile through which it has a right-of-way. To let the effects of such wrongful acts constitute the creation of a right-of-way under sec. 144.05 (2) is to misread the statute and to sanction an injustice.

         Stearns v. State Committee on Water Pollution (1956), 274 Wis. 101, 106, 79 N. W. (2d) 241. See also Witzel v. Madison Metropolitan Sewerage Dist. (1958), 5 Wis. (2d) 443, 445, 93 N. W. (2d) 174.

        Witzel v. Madison Metropolitan Sewerage Dist., supra, footnote 2.

       Id. at page 446.

       See for example Briggson v. Viroqua (1953), 264 Wis. 47, 58 N. W. (2d) 546.

        Briggson v. Viroqua, supra, footnote 5, at page 53, quoting 18 McQuillin, Mun. Corp. (3d ed.), p. 507, sec. 53.129 (now 3d ed. rev.), at page 492.

         (1924), 184 Wis. 352, 199 N. W. 390.

       “Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.” Charles Dickens, Bleak Home, ch. 1.