Banas v. State

• Decision Date: 11 April 1967
• Citation: 149 N.W.2d 571,34 Wis.2d 468
• Parties: Urban BANAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).
• Court: Wisconsin Supreme Court

Page 571

149 N.W.2d 571

34 Wis.2d 468

Urban BANAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).

Supreme Court of Wisconsin.

April 11, 1967.

Urban Banas, pro se.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Dist. Atty., Waukesha, for defendant in error.

HALLOWS, Justice.

While the brief of Banas lacks unity and coherence and raises sporadically many questions, its complaints may be collated under four main arguments: (1) It was error for the trial court not to allow him to impeach the credibility of a juvenile witness by the use of the witness' juvenile court record; (2) the juvenile court judge had no power to instruct the juvenile court clerk to disobey a defense subpoena to produce the record of the juvenile state witness; (3) there was insufficient credible evidence to sustain the finding of guilt beyond a reasonable doubt; and (4) the conviction should be reversed in the interests of justice.

Banas was found guilty of taking a fourdoor 1960 Oldsmobile belonging to Donald Grindrod from a parking lot of the White Sails Supper Club in the lake region of Waukesha county on the night of May 29, 1963. About eight days later the damaged car was found in Rockford, Illinois, and still later Banas was located in New York City, arrested, and brought back to Wisconsin on an extradition waiver. The primary witness for the prosecution was a 16-year-old boy, who was the parking- lot attendant at White Sails Supper Club on the night the car was stolen. Banas had worked for a few days as a dischwasher in a resort near the White Sails Supper Club, Had been drinking during the day of May 29, 1963, and had not returned to his job on that day or subsequently.

The juvenile testified he saw Banas in front of the supper club on the evening of May 29th and was as close as three feet from him. He saw Banas playing with a dog and after a while get into an Oldsmobile matching the description of the Grindrod auto and drive away. At that time he appeared somewhat intoxicated and was wearing khaki pants and a gray sweatshirt. Counsel for Banas was prevented from examining the juvenile witness concerning his alleged juvenile court record. It is argued this record would show the witness had been found delinquent by the Waukesha county juvenile court and other matters including his apprehension and interrogation concerning an auto theft, all of which would go to his credibility. The trial court ruled the juvenile court records were confidential and could be released only by the juvenile court judge and the finding of the juvenile court that the witness stole an automobile was not a conviction in a criminal sense and could not be used for impeachment purposes.

Banas now claims his constitutional rights were violated by this refusal to permit him to impeach the witness with the witness' juvenile record. We think not. This point has previously been decided by this court in Sprague v. State (1943), 243 Wis. 456, 10 N.W.2d 109, and in Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. It is true that sec. 885.19 (formerly sec. 325.19), Stats., provides a conviction may by record or cross-examination be shown to affect the credibility of a witness who has been convicted of a criminal offense; however, juvenile offenders are not persons who have been convicted, even though evidence of the crime is the basis for a finding of delinquency. Section 48.38(1), Stats., expressly provides the adjudication by the juvenile court of the status of any child imposes no civil disabilities such as are ordinarily imposed by conviction and does not brand such child a criminal, and such adjudication is not 'deemed a conviction.' The theory and philosophy of juvenile delinquency statutes as being the avowed antithesis of criminal provisions have recently been thoroughly treated in Winburn v. State (1966), 32 Wis.2d 152, 145 N.W.2d 178. Under the prohibitions of sec. 48.38(1) the disposition of the child's case and any evidence given in the juvenile court are not admissible as evidence against the child in any case or proceeding in any other court.

In the Sprague Case the defendant who was charged with statutory rape sought to introduce the juvenile court record of the complaining witness. This court affirmed the trial court's refusal to permit the introduction of this record because of the prohibitions of sec. 48.07(3), Stats., which became sec. 48.38(1) when the Children's Code was enacted by ch. 575, Laws of 1955. In the Smith Case we held this section forbade the asking of a minor driver, who was a witness, whether as a result of the accident her driver's license had been suspended by the juvenile court. Over the objection that this section was unconstitutional as violating the due process and equal protection clauses of the state and federal constitutions, we sustained sec. 48.38(1) as a valid implementation of the strong public policy to protect the child and as being within the legislature's power to make reasonable rules for limiting the admission of evidence and to make valid classifications of people for that purpose.

Nor is this protection limited, as contended by Banas, to cases wherein the juvenile is himself in jeopardy or on trial. We think the language of sec. 48.38(1) and the public policy for its enactment...