Bautista v. State
| Decision Date | 30 November 1971 |
| Docket Number | Nos. S,s. S |
| Citation | 53 Wis.2d 218,191 N.W.2d 725 |
| Parties | Phillip BAUTISTA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Allen M. DODGE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 31, 48. |
| Court | Wisconsin Supreme Court |
The plaintiffs in error, in both cases, hereinafter defendant Bautista and defendant Dodge), were charged with the same offense, parties to the crime of robbery. They were tried together in one trial, both found guilty by the judge without a jury, and both sentenced to not more than six years in the state reformatory.
On October 3, 1970, William Gandy was playing pool in a tavern located at 1518 West State street, Milwaukee, Wisconsin. The defendant, Phillip Bautista, entered the tavern with the defendant Allen Dodge and one Patrick Malone. A fourth man, Ervin John, and three girls were at the bar. Bautista turned off the light over the pool table by flipping a wall switch. This was done at least twice. Thereupon an argument ensued between Bautista and Gandy. Bautista testified that Ervin John, who was with Allen Dodge and Patrick Malone, intervened in the argument, telling Gandy that he had better leave the men alone.
Gandy finished his game of pool and then left the tavern to go to his car to get a pack of cigarettes. The four men and three girls with them also left the tavern. Lucille McDonald, a disinterested witness, testified that three of the men carried beer bottles with them. Gandy testified that as he approached his car he was struck in the back of his head. Someone then put an armlock about his neck. Dodge struck Gandy with his fists. Bautista struck Gandy with a bottle. John and Malone also hit him. Gandy was then knocked unconscious. His wallet, containing $20, and his hat were taken. The four men and three women then drove away in a car. Lucille McDonald observed the license number of the car and reported it to the police.
Both Dodge and Bautista were arrested and charged with two counts of robbery, party to a crime, which arose out of the October 3, 1970, incident.
The criminal complaint charged the three, Dodge, Bautista and Malone with the identical counts of robbery, party to a crime.
A preliminary hearing was held on October 15, 1970, as to the defendants Malone, Dodge and Bautista. All three were bound over for trial. Ervin John was not apprehended at that time and was only recently taken into custody.
On October 23, 1970, the defendants appeared in the circuit court. Malone pleaded guilty to both charges. Dodge and Bautista pleaded not guilty to both charges and waived a jury trial.
Bautista and Dodge were tried jointly on October 28 and 29, 1970. At the conclusion of the trial the court dismissed count two of the complaint as to both Dodge and Bautista. Therefore only the testimony regarding count one will be considered.
The information as to count one read as follows:
'* * * Phillip Bautista, Jr., Allen Michael Dodge and Patrick Malone, with intent to steal, did feloniously rob and take from the person of William Gandy, a wallet, the property of William Gandy, by using force against the person of William Gandy, with intent thereby to overcome his physical resistance or physical power of resistance to the taking and carrying away of said property, said offense occurring at 1518 West State Street, City and County of Milwaukee, State of Wisconsin, contrary to Section 943.32(1)(a) and 939.05 of the statutes, * * *.'
The court then found both men guilty of robbery, party to a crime. Both men were sentenced to six-year terms in the Green Bay Reformatory commencing October 30, 1970.
Bautista filed a motion for postconviction relief in the trial court. The motion was denied on February 12, 1971.
Dodge did not file a motion for postconviction relief.
Bautista and Dodge both appeal.
Additional facts will be set forth in the opinion.
Schwemer & Schwemer, Milwaukee, for plaintiff in error, Bautista.
Robert D. Jones, Milwaukee, for plaintiff in error, Dodge.
Robert W. Warren, Atty. Gen., Sverre O. Tinglum, Asst. Atty. Gen., Madison, for defendant in error.
As to both defendants, two issues are raised:
1. Is there sufficient credible evidence to support the convictions of robbery, party to a crime?
2. Should a new trial be ordered in the interest of justice?
As to Bautista alone there is a third issue: Is the sentence of six years excessive?
The record is clear that neither Bautista nor Dodge actually took the purse from Gandy; therefore their conviction for robbery must rest upon sec. 939.05(2)(b) and (c), Stats., as a party to the crime.
Two statutes are involved:
'(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property.'
'(2) A person is concerned in the commission of the crime if he:
'(a) Directly commits the crime; or
'(b) Intentionally aids and abets the commission of it; or
22 C.J.S., Criminal Law, § 79, pp. 237, 238, states that:
* * *'
Several rules applied in appellate review of the sufficiency of the evidence in criminal cases have been stated so frequently in our late cases that they need no citation of authority to support them. The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules.
There is no reasonable doubt that both Bautista and Dodge actually participated in a vicious assault upon Gandy. Such an assault can be part of and an aggravation of the crime of robbery. A physical...
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...review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules." Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d 725 (1971). See also, State v. Charbarneau, 82 Wis.2d 644, 650-51, 264 N.W.2d 227 The Wisconsin case law is very clear that the......
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