Ailport v. State

• Decision Date: 02 February 1960
• Citation: 9 Wis.2d 409,100 N.W.2d 812
• Parties: James AILPORT, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Harry AILPORT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Leslie GARBE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 812

100 N.W.2d 812

9 Wis.2d 409

James AILPORT, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Harry AILPORT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Leslie GARBE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Feb. 2, 1960.

Rehearing Denied April 5, 1960.

James Ailport, Jr., Harry Ailport and Leslie Garbe, plaintiffs in error, seek a review of the order denying a new trial to each of them.

Douglas, Omernik & Bitney, Spooner, for plaintiffs in error.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Eugene D. Jensen, Dist. Atty., Grantsburg, for defendant in error.

DIETERICH, Justice.

The statute under which the charge was brought is sec. 26.14(7b), which reads as follows:

'Any person who shall wilfully and maliciously set fire on any land shall be deemed guilty of a felony and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or by imprisonment in the state prison for not less than one year nor more than two years.'

The plaintiffs in error contend that the trial court abused its discretion in denying each of them a new trial, for the following reasons: (a) They did not understand the charge to which they pleaded guilty; (b) that they were charged with a violation of the wrong statute, and (c) that there has been a miscarriage of justice in each of their respective cases.

James and Harry Ailport were represented by counsel. James Ailport, Jr., in his affidavit, stated that he had no intention to plead guilty to maliciously setting the fire, that the attorney supplied to him by his father told him nothing about the kind of charge placed against him and did not explain the importance of the words 'wilfully' and 'maliciously,' that this plaintiff in error knew nothing about the existence of a statute making the setting of a fire without malice a misdemeanor or that the setting of a fire with malice was a felony.

Likewise, Harry Ailport in his affidavit in support of his motion for a new trial, stated that the attorney supplied him by his father did not advise him of the meaning of the statute.

Leslie Garbe, in his motion for a new trial and in his affidavit, stated that he set the fire for which he is charged and that he intended to set it. He states in his affidavit that at the time he set the fire he had no malice toward any person or thing, that the meaning of the statute to which he pleaded guilty was not explained to him.

Affidavits in opposition to the motions for new trials were made by Leland Whitney, a forest ranger, Bert Lund, a conservation aid, and Arthur Jenks, sheriff of Burnett county. The affidavits of Whitney and Lund set forth that on the dates of the respective fires, March 26 and April 23, 1959, the conditions of the weather, humidity, wind, and soil surface, were such that it was extremely dangerous to have any fires started, and any fires started on those dates would undoubtedly spread to neighboring lands and property; that the ground was extremely dry and there was no green foliage in Burnett county until approximately the middle of May, 1959.

The affidavits of Sheriff Jenks set forth among other things that during the period of time when the fires were set weather conditions were extremely dry and fires were difficult to control, that none of the fires were set accidentally or as a camp fire or picnic fire, but were set with the intent to burn the fields nearby. In each case the defendants [plaintiffs in error] left the scene of the fire and did not return until some time after. The fires in question had to be extinguished by a force of men from the conservation department.

The affidavits of plaintiffs in error in support of their motion for new trials set out in each case that they intended to plead guilty to a charge of having wilfully set a fire on that day, but had malice toward no one or toward anyone's property. In none of the cases is there any assertion whatsoever of any justification or excuse for setting the fires.

Sec. 26.14(7b), Stats., under which the charge was brought, provides in part as follows:

'Any person who shall wilfully and maliciously set fire on any land shall be deemed guilty of a felony and upon conviction thereof shall be punished * * *'

The entire section is concerned with the prevention and suppression of forest fires. The interest protected by this criminal statute is that of the owners of land and also that of the public, since forest fires not only damage the property interest of the owners of the forests but also endanger lives and cause great public expense in extinguishing them.

An analogy to common-law arson and to statutory arson as defined in secs. 343.01, 343.02 and 343.03, Stats., 1953, is apparent. The elements of 'wilfullness' and 'malice' existed in common-law arson and in the former arson statutes, just as they are included in sec. 26.14(7b). Hence the law of arson may be examined to determine the meaning of those terms as used in sec. 26.14(7b).

The theory of plaintiffs in error is that they could not properly have been convicted of the charge against them without showing that they were motivated by ill will or spite, and that the denials of the same in the affidavits of plaintiffs in error were sufficient to show that their pleas of guilty were improvident, and in the cases of the Ailports were based on mistaken legal advice. The intentional unjustified and unexcused setting of the fires under the circumstances disclosed by the affidavits of Whitney, Lund and Sheriff Jenks, fully responded to the requirement of the statute that the fires were set 'wilfully' and 'maliciously.'

In State v. Compton, 1890, 77 Wis. 460, 46 N.W. 535, 537, a prosecution for maliciously sending a threatening letter with felonious intent, this court stated as follows:

"The malice required by the statute is not a feeling of ill will towards the person threatened, but the willful doing of the act with the illegal intent.' Com. v. Goodwin, 122 Mass. 35.'

In 4 Am.Jur., Arson, p. 90, sec. 9, it is stated:

'Under the common law and under statutes which make malice and wilfulness an ingredient of the crime of...