*1 сontract not It our conclusion that instant is parties include Moran intended 60/40 profits partner from the construction mul- and sale of dwellings. apartment It our conclusion, ti-unit contrary, participation to those Moran’s was limited preparation subsequent profits from the of the land for buildings. ought attorney, drafter, construction of an capable adequately drafting have been docu- percent split profits ment to reflect com- 60/40 puted family dwellings construction of multi-unit after building or after the sale of to such lots constructors. so, intent, inability His to do if such were indeed the against nonlawyer not should be held nondrafter. By Judgment reversed and cause remand- Court . proceedings ed for further inconsistent with this opinion.
State, Respondent, Appellant. Elson, v. Argued No. State 20. June 1973 . Decided June 1973. (Also reported 363.) in 208 N. W. 2d *3 appellant For the there was a brief D. G. Graff Sehrank, & all of Madison, argument and oral Graff byD. G. Graff. argued by Robert respondent the cause was
For Martinson, attorney general, D. assistant with whom on Warren, general. attorney Robert brief was W. appeal. presented J. Threе are on issues
Hanley, complaint sup- 1. Does sufficient facts state port finding probable engaged cause defendant disorderly conduct; prove
2. there credible Was sufficient evidence to guilty beyond a reason- doubt; able prejudicial
3. Did the trial court commit error ad- opinion mitting testimony of certain of wit- state’s ? nesses
Sufficiency complaint. now,
The defendant contends as he did in the trial court, complaint does not state sufficient facts through in themselves or reasonable inferences estab- “probable lish cause.”
By statute, a comрlaint criminal “. . . is a written constituting statement of the essential the offense facts charged,” 968.01, Stats., and sec. in the case State Seraphim ex rel. Evanow v. 40 Wis. 2d gave N. 2d meaning W. this court common sense statute in must answer certain questions. page fundamental At 230, it is stated: *4 charge? charged? “What is isWho and When alleged Where is the offense place? Why to have taken particular person being is charged? . . . [and] ” says ‘Who so ?’ The sum of the questions answers to the above six complaint in the contained . . “. meet must the test of ‘probable cause.’” State ex rel. v. (1970), Cullen Ceci 432, 443, 45 2d 2d 175; Wis. 173 N. W. State v. Becker 659, 188 51 2dWis. N. 2dW. 449. magistrate if fair-minded complaint a “A sufficient alleged justify reasonably conclude facts could charges are proceedings criminal further supra; Ceci, capricious. v. merely ex rel. Cullen State 214, 224, 85 (1965), 381 U. S. Jaben v. United States supra, Becker, 2d 345.” State v. Sup. Ed. Ct. L. page at 663. testing complaint, both reasonable
In facts arising may looked from the facts be inferences to. complaint facts in themselves “A must state sufficient admitting suffi- to reasonable inferences which are , Becker, su- probablе v. cient to pra, cause.” State establish page at 662. charged disorderly conduct defendant with complaint charging he: and the so stated that day City at the of October, on the 24th of “. . . Wisconsin, Dane, Madison, County in of said State engage public place did in a in and other- boisterous wise conduct under circumstances disturbance; tended to a such conduct cause and your date, complainant, “1. FACTS: on the above a Security employed Officer Mendota State Hos- pital, City County Dane, Madison, of Wis- State dispatched cоnsin, Mendota an undesirable Hall, to Stovall located in Hospital, to State reference person your therein. At that time com- your plainant defendant, confronted who stated complainant Cathy patient that he wished named see attorney. He Comte. indicated that he her Your complainant Pyle, then contacted Dr. the Clinical Direc- Hospital, tor of Mendota State and was told that the the permission present did not have to be defendant ward. The that your complainant then stated defendant physical take would him, to remove force necessary. an arrest was complainant Your in- formed the defendant that he must remove from himself the ward and if he failed so do he would be arrested. Thereafter, Gerl Depart- Madison Police Officer again ment arrived and asked to leave and defendant again refused, stating physical force necessary would be to remove him the ward. There- from
59 de- your complainant Gerl took after., and Officer the n building. him the arm and escorted from fendant your complainant During period time when ward, attempting numerous to remove from gathering response to were the de- in arguments to leave the ward. and refusals fendant’s personal complaint “2. And based on that added.) knowledge your complainant.” (Emphasis complaint charges The one Ben above Edward Elson disorderly —the defendant —with conduct in violation of 947.01, goes Stats., to state the offense sec. on that place 1971, on in the took October Stovall Hall Likewise, Hospital. complaint Mendota State states personal knowledge it is on the based com- plainаnt, security employed Williams, Frederick officer hospital. only question, at the therefore, is whether charged. sufficiently specifies the it facts offense disorderly 947.01, statute, Wisconsin’s conduct sec. Stats., part provides: “(1) private public place, violent, engages In a or
abusive, or otherwise profane, boisterous, loud, indecent, unreasonably disorderly conduct under circumstances which to cause or such tends a dis- turbance.” the statute, required. Under two elements are “The being engaged first element defendants in dis orderly cоnduct, being second element [un der such circumstances] conduct tended cause or provoke a disturbance.” State v. (1969), Zwicker 497, 514, 164 2d N. Wis. W. 2d 512.
The initial assertion in the defendant’s conduct was “boisterous otherwise . . .” standing alone is insufficient. State v. Smith 50 Wis. 2d 184 N. W. 2d 889. Similarly, there are facts it alleged, seem, no would from could be inferred that the defendant’s conduct was boisterous that it violent, was “. . abusive, . indecent, profane, . . . *6 therefore, question, be-
unreasonably loud . .” The . could any from facts which it there are comes whether conduct “otherwise that inferred defendant’s be disorderly.” mеaning imputed
Although precise the be to no can conduct,” disorderly court in phrase this “otherwise 109, 115, v. 2d 135 Givens Wis. N. W. State 2d 780 stated: specific statute, in enumerations, the after the “When proscribes con-
a ‘catchall’ clause ‘otherwise ‘provoke disturbance,’ to a must duct’ which this tends type previously mean conduct similar thereto in a not but enumerated having disrupt good tendency a or- to interpretation and to der a disturbance. Such ejusdem upon generis." (Emphasis rests the rule of added.) complaint security complainant, that states a Hall, officer, Hospital, went to Stovall Mendota State response complaint person in a “of an undesirable thereon;” police that thereafter Madison officer ar- requested rived who defendant leave and again repeating refused, physical force necessary would be ward; to remove him from the during security the time the attempting officer was ward, remove the defendant from the numerous gathering response were in arguments to the defendant’s refusals leave the ward. In State v. Maker (1970), 48 612, Wis. 2d 180 N. W. court, page 2d at stated: emphasis upon “This court’s relatedness conduct in tbn.-n circumstances statute is no more a. recognition of the fact that what would constitute dis- orderly in conduct one set of might circumstances, under some other. jurist When a famed observed, ‘The stringent protection most speech of free pro- would not tect falsely a man shouting fire in a theatre and causing panic,’ the comment related to the crowded- ness the theater as well toas the loudness of the shout. conduct and circumstances It combination particular applying to a is crucial statute situa- tion.” might tolerated under dif- be
Defendant’s public on a confrontation ferent circumstances such as a in a mental ward It cannot tolerated street. be patients. presence in the of numerous alleged think the meet We facts supra, v. Becker, “six forth in State test W’s” set magistrate page reasonably 663. The concluded alleged justified proceedings. the facts further criminal Sufficiency *7 the evidence. adduced,
The contends the evidence defendant that by jury rationally and considered believеd the prove guilty beyond to sufficient him a reasonable doubt. already cited, Under the the evidence dis- cases must “violent, indecent, close that his conduct was abusive, profane, unreasonably boisterous, loud, or .” . . was “. . . otherwise conduct .” . . It also must be shown that the conduct “. . . under circum- occurred in stances such tends to cause or a disturbance . . . .” 24,
Prior to 1971, defendant, attorney, October an patient Hospital try retained a at Mendota State to effect her from release that Sunday, institution. On p. m., October at 2:30 defendant wеnt to the hospital and client, Cathy asked to his Comte, Mrs. see ward Visiting the where she was confined. hours were in effect and 10 or day- visitors were the hallway and the rooms near ward’s nurses’ station. prior
On County unit, defendant’s visit to the Dane 3, 1971, provide October the had him staff refused private place to interview client, requiring another stay that he and client the first on the ward and later providing separate room but always with a nurse present. On the visit here, involved hospital aide told charge signing visitors, Lynch, Eleanor that and visit he could not be allowed
defendant forbade rule which had a new administration pres- ward, thought, presence because his on the she his past. agitating patients in the She ence had been could defendant that “We also told the testified that she per- ward, provide him off the and we could a room for he couldn’t haps administration, contact but otherwise visit.” Mrs. examination,
On direct the defendant stated you get perhaps Lynch him, ward, off the we told “If you let to leave will see Mrs. Comte.” Defendant refused supervisor, Linda aide her Nurse summoned Walter. again re- leаve, he
The nurse also asked him to near fused. the aide talked with the She hearing pa- station within of two or three nurse’s and some visitors. Both aide tes- tients the nurse and during conversation, patients, tified one “agitated” Haber, spoke Rose became and sometimes loudly to the defendant who listened her. She testified agitated enough, if Rose on will strike out occasion. hospital’s The security, nurse called the chief of complainant, Frederick Williams. security joined chief of group near nurse’s practical ward,
station male and a nurse from another *8 Gallagher, They Dennis arrived soon afterward. both asked the defendant to leave. Defendant insisted he had right to remain and visit with his client. The chief security suggested hospital defendant sue the get changed the rule he so could be allowed on the ward. Defendant stated he would not leave unless arrested physically removed. He was told he would not ar- be if he rested would leave.
Gallagher, nurse, the male really testified that he did why not exactly know everyone wanted the defendant to leave the ward, but that he by gathering knew patients area within immediate that it or six five presence if the defendant’s were re- would be better patients of the He that have been moved. some stated up they get known to blow when excited. “When one gets high, patients go along patient or blows then more long before it’s with it and out hand.” during testimony There was the conversation security nurse, officer and the with the male defendant’s times, louder than normal at tone was and he made state- about ments conditions such as “The patients right have been afforded the telephone attorneys;” given (a drug); “Patients arе Thorazine you (if you do patient) How know are you whether allergic Thorazine;” being I crucified;” are “I feel am crucified, and “Jesus Christ was also on the cross.” Three were within earshot the conversation. Haber, One, pushing, milling Rose talk- around and ing loudly. shuffling Another appeared his feet and “getting agitated high” nurse to be male a little quietly. and the third watched or listened case with complaint, As was the a review also record demonstrates defendant’s conduct does any into specifically not fall of the catego- enumeratеd forbidden ries sec. 947.01 Stats. While there is evidence that establishes defendant’s voice was times,” than “louder normal at this does not establish “unreasonably “boisterous” or loud.” The conviction therefore, must, defendant’s be considered on disorderly the “otherwise prohibition conduct” statute.
To determine whether defendant’s conduct was similar specifically categories, enumerated resort must purpose had be of the statute itself. In State v. Zwicker, page 508, supra, at this court stated: proscribes “Wisconsin’s conduct statute con- duct in terms of results reasonably which can be ex- pected therefrom, than attempting rather to enumerate *9 person a acts which of antisocial number the limitless destroy menace, disrupt engage or would could imply all conduct not public statute The does order. disorderly conduct. is annoy another which tends unreasonably the sense as Only such conduct of offends community The included. propriety the is decency or of person conduct which punish for statute does hypercritical individual. might possibly offend some proscribе design is statute sensibili- the normal offend intrusions substantial significantly average persons or which constitute ties disturbing eyes the reasonable demeanor in abusive added.) persons.” (Emphasis arguments at trial Implicit in the both defendant’s appeal the conduct was occasioned on is that his now pres- rule which forbade his the arbitrariness on this court cannot now rule ence on the While ward. ruling hospital’s respect propriety of the with the defendant, clear that defendant’s is statements drug allergic being patients possibly about some telephone privileges pa- “Thorazine,” denial of for feeling he, attorneys, to call and defendant’s tients being crucified, on like “Jesus Christ” was when made hospital, arguably of a mental ward constitutes significantly disturbing “. . . abusive or demeanor eyes persons.” jury At could reasonable least so find. Givens, supra, particular v.
Just in State what is of importance in the at repeated case bar defendant’s - Givens, to leave the refusals ward. In demonstrators conducted a “sit-in” waiting on the floor room leading corridor office of the Milwaukee сounty supervisors. being board of Before arrested, “get up” demonstrators were asked to and cautioned they refused, they if would be court arrested. This page 121: stated majority of “The court, however, members of the
rely affirming judgments upon fact, the further
65 addition, deliberately know- that each defendant in and charge ingly of area.” violated those in commands bar,
In the must likewise be case at it concluded jury repeated and, the felt defendant’s refusals to leave co-operate meeting least, his at failure to with his separate substantially in client room off of the ward finding jury contributed to a “other- that his conduct was disorderly.” wise only attempting
Defendant contends that to he was protect attorney right his client’s constitutional an to duty consequently, do, and as was his to conduct was his reasonable the under circumstances. Defendant could accomplished rights protection the have of client’s his just separate as well in the room that offered as in the ward area. Givens, supra, v. page 118,
In State at is stated that: “Can it be said that the in acts at were case bar protected vаlidly exercising because the defendants were rights their constitutional of of speech, freedom freedom assembly, petition of grievances? and freedom to for of the redress ‘No,’ The answer is and reason protections such constitutional not are absolute. As the supreme United States Louisiana, supra, recently court in Cox v. said page 554: “ guarantee ‘The constitutional implies liberty of organized society existence an maintaining of public order, liberty without which itself would be in lost anarchy. The excesses control of travel on the streets governmental example clear is a sure responsibility in- to necessary A relation, this order. restriction in designed promote public to convenience in inter- all, susceptible est of and discriminatory not abuses application, disregarded attempted cannot be by the ex- right which, ercise some civil in circumstances, other protection. would be justi- entitled One would not be ignoring in light fied the familiar red because thought to be a protest. means one, of social Nor could contrary regulations, to traffic upon insist a street meeting in the Square middle of Times at the rush hour speech a form freedom of assembly. or Govern- responsibility duty have
mental authorities A for movement. keep group to cordon open available their streets right upon the insist could not of demonstrators private public or street, entrance to off a agree to pass did who allow one building, and no ” exhortations.’ to their listen concerning testimony the fact that record dayrooms from 10 to there visitors were standing, to- hallway near where the defendant gether earshot the three who were with *11 milling around, con- pushing that and shows defendant’s good disrupt to order of duct tended that jury could conclude and a create disturbance. provoke to conduct tended cause or a dis- defendant’s presented. the circumstances turbance under Expert testimony. ques-
Objection hypothetical by is taken defendant to security and tions were of both officer asked complainant, Williams, Frederick Zorislav and Dr. psychiatrist hospital. Greblo, on the staff Over a at objection ex- that the witness lacked following pertise, question asked the on Williams was direct examination: upon your experience police a and “Based as officer experience upon your security also as a Men- officer for you opinion dota State do have Hospital, an as to wheth- or conduct, er to defendant’s both would refusal his statements,
leave and his various tended have particular or a cause disturbance on that day, 24,1971 ?” October . . . responded saying: Williams “I felt that his conduct creating there was a dis- signed why turbance and I that’s did a he create disturbance.”
Williams has security been director of at Mendota Hospital State for three years and one-half and before police department a Madison was member twenty-three years, employed for and while ca- pacity approximately made for arrests conduct. deciding
In possesses a whether witness sufficient background knowledge, experience testify an or expert, the trial court had wide discretion. Netzel v. State Sand & Gravel Co. 51 Wis. 2d 186 N. W. 2d expert and, 258. If an thereforе, was en- Williams respond question propounded titled to him, is apparent that he fulfill “the must role and status might lay what expert, meaning person be termed a expertise special competence or whose derives from ex- perience working in a field of endeavor than rather from diplomas.” studies or Netzel v. State Sand & Gravel Co., supra, page 8.
The testimony of Dr. Zorislav Greblo who testified physician that he psychiatrist, challenged there because no prac- evidence really that he had ticed medicine or psychiatry, or that he li- evеn practice actually censed or had finished medical school internship showing any residence or he had experience any with mental institutions *12 therein other than his fifteen months Mendota. testimony of doctor, however, the was that he awas physician psychiatrist, and having psychiatrist been a for having somewhat over ten years, medical attended school; that, one-year after he had internship and years training three of residence Chicago; that he was the chief on service the County Dane (of Unit Hospital) Mendotа organized State which about was trial, fifteen months before the and that the witness had during been on that unit all prosecution time. The then offered the expert doctor an as psychiatry objected which the grounds “on that I don’t you expert can believe have an in psychiatry.” Psy- are, regarded course, of chiatrists expert witnesses; as 68 general practitioners matter, physicians and
for that some study insanity had or have made have some who qualified as experience are deemed mental cases with 815, 797, (1967), 2d 35 experts. Nelson v. State Wis. 151 2d 694. N. W. question hypothetical challenge
A made to the also permitted to answer. Dr. Greblo asked was hypothetical questions were asked Dr. Greblo. Two ground objected question on the The first was predictors than psychiatrists are no of behavior better people. any group the The trial court sustained other ground long objection question on the the too ques- many rephrased, and contained too “ifs.” As substantially tion the same as before: “Q. County present If an individual were on Dane statements, presence patients Ward, in made three pa- three that I over went before statements [‘The right counsel,’ phone aren’t afforded a to a to call tients second, cross,’ ‘God was crucified on the or some being thereof; facsimile reasonable that the third statement are administered Thorazine or other drugs, could this tend to cause you you’re allergic ‘How do know to them?’] a disturbance on that particular ward ?” Yes, “A. I think so.” question to the second rephrased,
As as the defendant objections. made no challenges
Defendant likewise testimony of Wil- liams grounds and Dr. Greblo on the they could testify to only ultimаte facts if testimony their involved science, special matters art or skill. v. Fehrman Smirl 20 2dWis. 2d N. W. 2d N. W. 439.
As facts in case, the defendant contends jury just competent opinions to form draw inferences as were witnesses, consequently, their testimony province invaded the jury. *13 “high engaged If his prop- jury Madison, noon” in could most downtown erly judge likely to itself whether cause or for This, however, not the case. disturbance. mental conduct occurred in the ward of a Defendant’s hospital extent, psychiatrist and to had Greblo with the for fifteen worked on that ward qualifiеd peculiarly predict potential months, reaction which such conduct would have. appeal
The circuit decision on court’s clear makes testimony uphold would be sufficient the con viction, opinion testimony even without Dr. agree Greblo and Mr. Williams. We with that deter Therefore, testimony, mination. the admission of such all, if error at and, would be at most there cumulative fore, Kopacka harmless. v. State 2dWis. 466, 126 N. 2dW. 78.
Defendant also contends that he is entitled to a dis- cretionary justice reversal the interest of on the ground allegеd that the errors taken in their entirety so require. alleged relate to errors the numerous evi- dentiary objections which the state made to defendant’s attempt relating to introduce facts to the lawsuit brought against he had officials; pro- patient for cedures contact lawyers; other ob- jections which were made to defendant’s examination of himself in narrative fashion. These were facts being litigated. relevant to the issues A new trial justice granted the interest of will be only if there has apparent miscarriage been an justice appears and it optimum retrial under produce circumstances will a different result. Okrasinski v. State (1971), 51 Wis. 2d 210, 186 N. W. 2d 314. In view of sufficiency of the evidence, even without the testimony which is alleged to alleged constitute the basis of errors, there *14 were if a new trial probability result of different
is no granted.
By the Court . Order affirmed. (dissenting). reverse, would as I would J.
Wilkie, I different reason. but for a Mr. Justice Heffernan, dissenting agree opinion or in Givens do not with his here, analysis disorderly conduct statute with his reflecting agree However, with views Givens. in I do his analysis finding complaint Justice Heffernan’s the Mr. by proscribed specify conduct dоes not insufficient. It the disorderly I the conduct statute. would reverse for complaint the reason that is insufficient. (dissenting). majority reaches J. The
Heffernan, boot-strapping operation result that its assumes meaning statutory phrase purports the it in- the to terpret. complaint the While that is insuf- concedes allegation no ficient because there factual is conduct, complaint “boisterous” the it finds the facts allege sufficient to “otherwise The conduct.” complaint merely facts of are the defendant Hall, gone to asked leave Stovall he where had leave; a client. He refused see but after the refusal argument, the officer took the by the building. arm and him from the escorted majority opinion cites Givens dis- “otherwise orderly” conduct means similar to that enumerated in i.e., statute, violent, behavior that abusive, inde- cent, profane, boisterous, or unreasonably loud. Elson’s alleged complaint is similar to none of those enumerated statute. While alleged that go Elson said he would not without the use force, alleges it also that he quietly left and without resistаnce. Givens, given majority
As has an unconstitu- gloss tional to a statute that under a restricted view alleged com- The facts in the constitutional. would be squarely prohibition plaint within do fall given interpretation statute, the court and the has vague disorderly” that the to “otherwise shows statute is subject any interpretation a com- almost plainant put upon a court it. wishes to appears
It of a com- this writer issuance *15 plaint peaceably and warrant after the defendant left premises grave questions abuse raises processes. The criminal a whole reсord reveals as proper Elson concerned about treatment civil at the The record liberties institution. inmates singled out, illegal by patently he shows alone rights patients. rule denied certain of access to It appear prosecution to the writer would this instituted of what not because Elson had done, but be- lawyer cause of who he was —a who it his considered duty protect in the face his of official ar- clients rogance, thorn in the side of the authorities. pique record The shows at what Elson did Stovall 24, 1971, Hall on October but аt his course of conduct they that had irritated the authorities extent that him, denominated reveals, as the an “unde- person.” sirable right the writer
While no doubt of the has hos- pital premises authorities to remove from per- any way who conducts himself in son such a to disturb endanger patients, the welfare of the cry is a far this initiating against from criminal sanctions one who has premises. peaceably left the interpretation majority places upon the stat- typifies
ute in case process abuse of the criminal statutory vagueness. from that results prose- This is a brought. cution that should never have been I am authorized state that Mr. Justice Beilfuss joins in this dissent.