*1 is to be Mrs. from the date or dates of paid by Lingott pay- ment. assumes, but does foregoing paragraph purport determine, $52,614.75 that the stated by figure (as will be found the trial court to be
county treasurer) by correct total of the accumulated and taxes which had merged been as of March remand the unpaid Upon trial court should itself as to the correct amount of satisfy 13, 1964, taxes and interest which due as of were March and add thereto sums any (with interest) subsequently paid taxes, then the defendant court should enter a order new based thereon. reversed, Court.—Order and cause remanded
By directions. v. Respondent, Appellant.
State, Reynolds, 5, 1965. September 10 October *2 and oral For the there was a brief argument appellant *3 Adrian P. Schoone of Racine. R. by Betty
For the cause was argued respondent Brown, whom on the brief assistant with attorney general, Follette, A. La William were Bronson C. attorney general, Clickner, Plats, dis- and Gerald assistant attorney general, trict of Racine attorney county. issues are on this Two presented appeal:
Wilkie, J. First, denied to a trial? was his appellant right speedy Second, the trial err in did court admitting testimony confederate, of materials in apprehended possession came from site of another appellant, alleged burglary earlier had occurred a week ? which Trial. Speedy I 7, art. of the Wisconsin constitution and the Sec. Sixth 1 amendment of United States constitution an guarantee amendment, Const., This court considers that the Sixth U. S. applicable due-process states is made clause. State ex Fredenberg Byrne v. rel. Wis. 123 N. W. (2d) 305. accused the to a trial. Each case right speedy an involving denial of this facts; turns on alleged right its own the facts in the instant case are these: and his Appellant coaccuseds were arrested on the October evening 1960. Two later a and warrant days complaint were issued and he was taken before a demanded magistrate. Reynolds a preliminary which was set for hearing November 7th. He subsequently waived the The information hearing. was filed December 15th and counsel was at appointed On appellant’s request. December 28th the remanded, case was mo- counsel’s upon tion, to the court commissioner for a preliminary hearing. was held 1, 1961, March and preliminary was appellant bound over for trial. Appellant pleaded at guilty 19th April and asked arraignment for a trial. This separate motion was and granted alone Kennedy brought trial 26th. After the April state had case, its presented trial court directed a verdict of on two acquittal grounds: Sec. 943.10 (1) Stats., (1) (a), is not to the applicable entry public the state had not buildings, (2) intro- duced sufficient evidence to show that had entered Kennedy the school with intent to On 28th, steal. May appellant violation, imprisoned and three parole later the days him burglary charges against were dismissed on Strong the sole that the ground did not burglary statute apply entry public The state buildings. the Ken- appealed *4 and nedy acquittal dismissals the charges against and Strong Reynolds. Another was to attorney appointed on the represent appellant 6, On appeal. 1962, this February court affirmed acquittal but reversed Kennedy, orders dismissing charges against appellant Strong.3 2 Kopacka v. State (1964), 457, 22 (2d) Wis. 126 (2d) N. W. 78. 3 Kennedy State v. 600, (1962), (2d) (2d) 15 Wis. 113 N. W. 372.
354 Racine on The case remanded to the court county was 2d. April 29th, but the released from May was prison
Appellant not informed of the Racine district was attorney county until release. Efforts to locate were unsuccessful appellant 1964, 24, the district was advised by when May attorney in that authorities that was held state. Michigan being waived extradition and was returned Wiscon- Appellant 27th, trial, sin. After a which commenced October jury ap- was convicted of He was pellant burglary. represented by counsel. violated,
In
that his
to a
trial was
contending
right
speedy
to the
his arrest
between
four-year delay
appellant points
not,
his
of time
trial. But
does
lapse
“[m]ere
itself,
denial” of this
when
constitute
the accused “is
right
4
tried as soon as the
of the court
orderly operation
permits.”
Furthermore, an accused is
to take affirmative
required
trial
action to
case on for
as a condition
bring
precedent
the dismissal of the
At no
demanding
pending charges.5
time did
of his
request
case.
appellant
speedy disposition
The state’s initial
the case to trial was
attempt
bring
insistence,
thwarted when
at his own
appellant,
granted
trial
his defense
because
to that
separate
antagonistic
Then the state had to
Kennedy,
accomplice.
appeal
the dismissal of the
which also
charges against appellant
came about as a
of his
result
own motion.
the time the
By
decided,
remanded,
had been
the case
and the
appeal
charge
reinstated, a
and a half of the
year
four-year
had
period
after the Racine
Shortly
authorities
elapsed.
county
learned
4
State,
2,
Kopacka
supra,
page
v.
footnote
at
5
State,
2;
Kopacka
supra,
v.
footnote
State v. Carli
2
(1957),
429,
434,
830,
86
(2d)
(2d)
(2d)
Wis.
N. W.
87 N. W.
357 U. S.
907,
1151,
1157;
2
Sup.
78
Sawyer
Ct.
L. Ed.
State v.
218,
Wis.
N. W.
Sup.
U. S.
Ct.
66,
355 of the results of was released from appeal, appellant and absented himself from the state for two nearly prison for before Counsel was years being apprehended. appointed Wisconsin, after his return to and after a motion to appellant trial, dismiss for lack of he and convicted. a was tried speedy Thus, blush, interval at first although four-year might, unreasonable, to be inordinate examination of and an appear the facts that it discloses was caused own by appellant’s motions, court, of the conduct of the business orderly from the own state. flight contends, however, that his the state
Appellant leaving him cannot be held trial against resolving speedy he issue since his release from virtue of gained prison by the district failure to file a detainer attorney’s warrant with authorities. This fact is of no for two prison import First, reasons. cannot on on the appellant rely any lapse state’s he when fled state instead of “affirma- part taking tive action” of his seeking disposition case. Appellant he contends that did not realize he had lost his but it appeal, is received a notice of and al- undisputed appeal fact, the record does not disclose the it affirmatively is reasonable to assume that his acted conscientious- attorney him of the Second, outcome. the time ly apprised only another, in one form or is considered when spent custody, trial cannot com- resolving speedy question. Appellant that he tried with sufficient haste when his plain own conduct wheels from If this prevented judicial turning. otherwise, a were who remained at suspect large an warrant for his ar- lengthy period, despite outstanding rest, to the time of the could between the issuance point lapse and his warrant apprehension. See Hansen v. State 26 Wis. N. W.
Evidence Burglary. Other school, the have entered found to was Kennedy Although to held insufficient because the was was acquitted he entered the building reasonable doubt that a beyond prove the intent to steal. with the much of the evidence was
In the trial of appellant that it in the case. Thus was established same as Kennedy that been door of the school had jimmied; one apparently the be from all of the doors locked but could opened were came inside; “charging that Kennedy, Strong appellant, a the front that was Strong carrying out of entranceway;” maul, “hammer, two drive canvas a pins, bag containing even the weather chisel;” a all three that wore gloves not crowbars, which did mild; belong and that two school, the found in the school. were introduced At the trial additional evidence was Reynolds in the canvas intent to steal. tools show appellant’s tools; there identified as burglarious were specifically bag marks had made the that one of the crowbars was testimony in there a deal of door; money on the evidence that was good office on the of the break-in was night the superintendent’s introduced. intent to
For Reynolds’ the limited purpose showing steal, the of a at Two state offered evidence burglary the had a week before just Rivers school that occurred testified that a Two Rivers break-in. Witnesses Burlington in and a hole knocked a wall order been entered school.had been taken. Bits of to a vault. Over had access gain $200 at were tile found in the canvas bag Burlington and plaster to the FBI laboratory comparison samples sent of the Two Rivers tile and taken from wall plaster FBI two testimony by Over objection, school. appellant’s fragments at laboratory agents employed from the matched the Two Rivers school was bag fragments admitted.
Evidence be admitted “of other which occurrences may similar in defendant has when such others are participated, facts and to the time of the offenses for which a de- close fendant is on trial.” This is admissible not to evidence rather to the defendant of the crime but prove guilty charged However, show some element of that offense.8 it must some the other shown that accused had connection with of this testi- offense.9 contends that the admission Appellant he, was erroneous because mony Strong, carrying link did not and also because state specifically bag *7 that him with the Two Rivers state counters burglary. the the and cohorts at the possession bag by appellant time of their of who was toting regardless physically arrest — to nexus to the Two Rivers crime it—constitutes sufficient render the evidence admissible. Lom- Lombardi,10 evidence of events in which
In State v. a of ill-fame held admissible bardi at house was participated the for to enforce on a knowingly failing him charge against In Herde v. to the house. laws prostitution against relating that the defend- State,11 admission of evidence was allowed circumstances had committed a under robbery ant recently 7 438, 421, 99 W. State v. Lombardi 8 N. (1959), Wis. 829. 8 684; Kluck v. 408, Herde v. State 295 N. W. (1941), Wis. Meating 683; State v. 381, State (1937), 269 N. 223 Wis. W. 47, 231 N. 202 Wis. W. (1930), ele specific “In a class of cases where a intent is an essential crime, closely similar acts so connected with that ment of the other characterizing charged directly as to tend to show intent Baker v. State may purpose.” proved for that latter 145, 566; S., Law, 97 N. see also 22A Criminal Wis. W. C. J. p. sec. 686. 10 Supra, footnote 7.
11 Supra, footnote 8. Kluck v. State,12
like the one for on In which was trial. evidence a defendant with the connecting transportation illicit alcohol a month or so the seizure of a still preceding was held as to that the manufacture competent tending prove traffic illicit was a offense and liquor continuing of these acts tends element of the prove crime specific In State v. charged. Meating,13 involving prosecution automobiles, stolen evidence concealing concealment showing of other stolen automobiles held was to be received properly as to establish some of the offense tending ingredient In Smith v. State,14 charged. where defendant was also of other offenses was held charged burglary, testimony Diets admissible to show element of intent. Finally, State,15 v. in a for murder committed prosecution defendant when he shot a law-enforcement officer who with it, other officers had the home surrounded and laid seige the state introduce evidence that the defend permitted ant had frequently uniformly during preceding years made armed resistance to arrest and threatened to shoot the officers on sight.
In each of these cases the evidence showed ac- cused had crimes, offenses, been involved in the other actually Here, or occurrences. there no evidence that Reynolds was involved in the Two Rivers break-in. actually *8 16 The state relies on Neubrandt v. State to its support contention that this evidence was received even properly there was no direct evidence that in- Reynolds was in the In Neubrandt a volved Two Rivers episode. building was entered and items to the owner and a boarder belonging were taken. The defendant had of all the stolen possession
12 Supra, footnote 8. 13 Supra, footnote 8.
14
555,
(1928), 195 Wis.
m co Cs that he was with arrested, and evidence found when goods at admissible was deemed boarder’s properly the property The instant case presents trial for the owner’s. stealing not it the was Although on facts. different situation quite boarder’s had stolen the property, that Neubrandt proved in his all of the were found because goods was implicated with or associated of the tools fragments None possession. in Reynolds’ were found posses- Two Rivers burglary the the however, that since bag The sion. state argues, seized, men were under one three when they of the by carried to one is tantamount by posses- the circumstances possession inherent in such is The theory sion each. danger by Rivers Two still does not tie appellant up this that appellant joined conceivable reasonably It is burglary. subsequent only with Kennedy Strong up and/or be school. doubt must Every on the Rivers assault Two of the defendant. resolved favor establish either that bag belonged failed to Having or that he actually of Reynolds or was possession affair, the has Rivers state a role in the Two played break-in. Con- the other a sufficient connection with shown this even have evidence it error to admitted sequently which offered. the limited for it was for purpose received in error was undoubtedly evidence thus of must and the conviction defendant prejudicial judgment trial. be set aside the cause must be remanded a new what We are to reconsider attorney asked by general was said this court in wherein Kennedy, majority the court upheld judgment acquittal Reyn- involving confederate, olds’ Kennedy, stating: “. . . the inference of intent to steal could not properly drawn from the evidence with sufficient to over- certainty come the of innocence and to presumption meet the standard beyond a reasonable doubt.” Kennedy, supra, State v. page footnote at *9 that an inference
Specifically, attorney general urges or of intent to steal “arises of the presumption upon proof so, of a or to do breaking entering building attempt in without consent which inference or nighttime,” pre- “is a sufficient basis for the case to the sumption submitting and for a it of the element of an intent to jury finding by steal in the absence of the accused.” explanation 943.10, Stats.,
Under sec. one found guilty burglary be sentenced to as as ten in The may much years prison. statute that the be “with intent to specifically requires entry Thus, steal or commit a it not covers an felony.” only entry made intent to steal” but others made intent to with “with arson, offense, commit a sex or other crime classified as any a It is conceded that it is difficult cases to felony. many intent. the state What is here is prove requisite asking that, on a or showing breaking entering building, so, an to do without consent there attempt nighttime, more, “arises” with an inference that the defendant nothing is there intent steal. The with to or breaking entering may have been an intent to commit a different felony entirely from the state infer would an intent steal. stealing, yet have been made entry with the of com- may purpose a misdemeanor or for an innocent mitting entirely purpose. We do not think it unreasonable for the legislature require of “intent to steal or commit a in order to felony” gain a conviction for with the ten- burglary maximum attending It year 943.14, should be noted that sec. imprisonment. Stats., makes it a crime a fine of not separate punishable by more than or of not more than six imprisonment $200 months or both one where enters “intentionally dwelling of another without the consent.”
It is reasonable to entirely require prosecution establish element each of the crime by each element proving accordance with standard of prevailing proof beyond *10 in the rule advocated Kennedy reasonable doubt. change than raise an inference that do more really the state would by “intent to steal entered the the had building defendant rebuttable which would constitute a presumption it would of innocence. the normal effectively destroy presumption con as all of the both pro After considering arguments case, of this see no reason adopt- the facts we applied in or attorney general the rule change suggested ing in modification in the Kennedy. holding making any reversed, remanded and cause Judgment By Court.— in accordance with this for a new trial opinion. J.,
Fairchild, dissents, of the opinion judgment being be affirmed. should I believe it essential to limit (concurring).
Gordon, J. convictions in offering proof prosecution prior the accused’s related conduct as a means of proving previous, the crime currently charged. intent to commit it is if of the sufficient Under holding majority acts which were involved previous accused was personally he is acts for which close in time to those similar facts and 8 Wis. State v. Lombardi tried. being (1959), presently 421, 438, 99 N. W. (2d) (2d) mis- to admit
In it is improper proof prior my opinion, either admitted such offense the accused had conduct unless not thereof. We do presume guilt; or had been found guilty as This is true of current charges innocence. we presume In guilt, as incidents. attempting prove well previous a defendant’s to show should the permitted prosecution the mere fact of crime by intent to commit present ma- I believe that the in an earlier involvement episode? as invites the to treat accused jury jority’s position fact has even such of the earlier misconduct guilty not been proved.
Even if Mr. Reynolds had been at the scene Two Rivers, we would surely permit evidence as to that any transaction to be offered in his current trial if he had been tried and of the acquitted event. previous For the same reason, since he is innocent of presumed event, such earlier it seems to me to allow improper such event so as the cloak of long innocence to that relating still episode surrounds him.
Under the facts of State v. Kennedy Wis. 600, 113 N. W. it was held that there *11 no inference or of an intent to presumption steal under sec. 943.10 Stats., reason of (1), by one’s breaking entering into a school As building. out in that case and brought is in again recognized in the majority opinion instant case, the have been for entry may “the of purpose committing a misdemeanor or for an innocent entirely Al- purpose.” though could'not in prosecution such manner create an inference of the accused’s intent, felonious approach in effect majority would allow the to lift prosecution itself its own by The state can bootstraps. an intent to steal prove by that the accused showing in other occurrences participated similar in facts and in close time—even he was never convicted of such acts. prior
A corollary drawn to the may rule which an permits accused who has taken the stand in his own behalf to be on impeached cross-examination of his by proof having been convicted of The previous crimes. fact that he was accused or previously indicted previously would not be as a enough basis for qualify proper Schroe impeachment. der v. State 251, (1936), 259, Wis. 899; 267 N. W. Koch v. State 470, (1906), 474, Wis. 531; 106 N. W. see 325.19, also Stats.; sec. 20 A. L. 1421, R. 1434. This was well concept in expressed United States v.
Haynes C. Pa. (D. Fed. 1948), Supp. 68: a defendant cannot be made as to whether “Examination or arrested, incarcerated, indicted engaged has ever been for even are immaterial violation of a law. These facts to indictment.” are arrested and subject innocent persons the same analogy court of recognized Georgia appeals E. 608, 609, 61 S. v. State 82 Ga. App. Waters 794: show- in a case be discredited may by a witness “Although moral turpitude, of an offense involving his conviction ing he was that merely showing not be discredited may by offense, there is proof since ‘until and tried such charged of conviction he is the legal presumption protected a defendant same where innocence.’ . . . The rule applies with to be connected on trial for a criminal offense is sought other criminal transactions.” bar, the rejecting
In the case at majority opinion, of the state’s that the carrying bag by companion argument it, asserts the to Reynolds’ was equivalent possession following: this still
“The inherent in such a is that does theory danger It is not tie with the Two Rivers burglary. appellant up Ken- joined conceivable reasonably appellant up *12 to the assault on nedy Strong only subsequent and/or in resolved favor Rivers school. doubt must be Every Two of the defendant.”
In this if the would true even showed my proof opinion, that or been at the Two had Reynolds carrying bag favor, in his as the Rivers school. doubt Resolving every done, must be it is not inconsistent majority acknowledges innocence that he at the Rivers Two Reynolds’ school, was the owner of the or inwas bag personal posses- sion of the Not been convicted of the Two bag. having event, Rivers must be innocent as to it. Reynolds presumed It would that the of appear court Tennessee has supreme a rule adopted in comparable this con- suggested currence. Wrather v. State 179 Tenn. (1943), S. 854. In decision, W. a recent of court Georgia in appeals, Dandridge App. 33, v. State 109 Ga. E.S. said: it is in evidence, error to admit
“Ordinarily, over objec- tion, an indictment the defendant for another offense against which there has been neither upon an nor a con- acquittal viction, even it otherwise be admissible might as an to the ‘other exception transactions’ rule.” A case which the rule squarely adopted in this suggested is United concurring opinion States v. Haynes C. Pa. (D. 63, 68, 81 Fed. 1948), where the court Supp. said: short, “In acts of misconduct not in resulting conviction are not the subjects proper cross-examination to impeach a witness or to establish intent, motive, and show identity, scheme or plan.”
Conclusion. Actual conviction should be before the required prosecu- tion is permitted offer I previous occurrences. think our basic concept innocence presumed makes the of this adoption rule a logical Innocent necessity. persons become may involved in a occurrence; suspicious innocent are even persons sometimes or indicted. charged I am authorized to state that Mr. Beilfuss Justice Mr. join this concurring opinion. Heffernan Justice
Currie, C. (concurring part, dissenting part). J. I concur in all of Mr. opinion except Wilkie’s Justice last two thereof. paragraphs With to those respect two para- I graphs dissent. respectfully Where adult as strangers, *13 here, tools come into use community burglarious enter a school I believe the is entitled to draw jury building, in the absence of evidence an inference intent to steal any for the entry. to establish a different reason illegal tending v. Camara, State, Respondent, Appellant. September 10 October