Blenski v. State

• Decision Date: 30 November 1976
• Docket Number: No. 75--296--CR,75--296--CR
• Citation: 245 N.W.2d 906,73 Wis.2d 685
• Parties: Roman R. BLENSKI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 906

245 N.W.2d 906

73 Wis.2d 685

Roman R. BLENSKI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--296--CR.

Supreme Court of Wisconsin.

Argued Sept. 14, 1976.

Decided Oct. 5, 1976.

Rehearing Denied Nov. 30, 1976.

Jack E. Schairer, Asst. State Public Defender (argued), Howard B. Eisenberg, State Public Defender, on the brief, for plaintiff-in-error.

Michael R. Klos, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.

HANLEY, Justice.

Five issues are presented on this appeal:

1. Did the trial court lack personal jurisdiction due to improper venue?

2. Was the complaint in Case No. H--9383 sufficient?

3. Was the evidence at trial sufficient to sustain the convictions?

4. Do the penalty provisions of sec. 440.41(10)(c), Stats., apply to violations of sec. 440.41(2) Stats.?

5. Is sec. 440.41, Stats., unconstitutionally vague and overbroad?

Venue

The defendant contends that the trial court was without jurisdiction over the person for lack of venue as to the counts for solicitation of contributions without prior registration.

Sec. 971.19(1), Stats., provides that the place of trial in a criminal action should be in the county where the crime was committed, unless otherwise provided. Sec. 971.19(2), Stats., however, provides:

'Where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred.'

The defendant argues that the offense under secs. 440.41(2) and 440.41(10)(c), Stats., contains only one element, the failure to file the proper information for registration with the Department of Regulation and Licensing located in Dane County. While the failure to file is a critical element, it is not the only one. We think the offense may not be committed without the act of soliciting contributions. Since two acts are required for the commission of the offense, failure to register and solicitation of charitable contributions, venue would have been proper in either Dane Or Milwaukee County.

Sufficiency of Complaint

The defendant challenges the sufficiency of the complaint in Case No. H--9383. The state objects to appellate review of the complaint's sufficiency on the ground that the defendant failed to preserve this challenge by a motion before trial. However, at his initial appearance, Blenski filed a pro se motion to dismiss the complaint on various grounds.

In denying the defendant's motion the trial judge, in a memorandum decision, treated the motion as a challenge to the complaint's sufficiency, stating the complaint met the test for probable cause as outlined by this court in State ex rel. Evanow v. Seraphim (1968), 40 Wis.2d 223, 161 N.W.2d 369. The trial court has not been denied the opportunity to correct the alleged error. The defendant adequately reserved his right to review the sufficiency of the complaint, and this issue is properly before the court.

The complaint in Case No. H--9383 charged the defendant with two counts of soliciting contributions without prior registration, contrary to secs. 440.41(2) and 440.41(10)(c), Stats., and four counts of using names without authorization when soliciting contributions, contrary to sec. 440.41(10), Stats.

Of the six counts, three relate to Operation Christmas Baskets on or about November 28, 1972. Count one charges the defendant for soliciting without registration, and counts three and four charge defendant for using the names of South Side Improvement Project, Rosemary Matovich--President, and Consolidated Tribes of American Indians, Mrs. Huston V. Wheelock--President, respectively, without their written consent in conjunction with Operation Christmas Baskets at that time.

The other three counts, counts two, five and six, are identical to counts one, three and four, respectively, except they relate to Operation Easter Baskets on or about April 12, 1973.

The defendant's challenge is based upon the contention that the complaint does not meet the test of sufficiency stated by this court in Holesome v. State (1968), 40 Wis.2d 95, 102, 161 N.W.2d 283, 287:

'In order to determine the sufficiency of the charge, two factors are considered. They are whether the accusation is such that the defendant (may) determine whether it states an offense to which he is able to plead and prepare a defense and whether conviction or acquittal is a bar to another prosecution for the same offense.'

The defendant relies upon this court's recent decision in State v. George (1975), 69 Wis.2d 92, 230 N.W.2d 253. In that case George was charged with thirty counts of commercial gambling. Twenty-nine of the counts were found to fall short of the Holesome test on the ground that they were either multiplicitous or duplicitous. In describing those twenty-nine counts the court stated:

'In the George Case, twenty-nine of the thirty counts allege that George received bets for gain regularly from periods of one month to several months from September 15, 1971, to January 1, 1974. The complaints named eight individuals as the bettors. All but one of the eight bettors are named in two or more counts. Several of the counts name the same bettor for the same period of time but identify the bets as being on college football games or professional football games without any identification as to what particular college or professional game.' State v. George, supra, at p. 98, 230 N.W.2d at p. 256.

These various counts, the court concluded, presented a problem of double jeopardy because if, as the state contended, the various counts alleged a series of continuous crimes they were multiplicitous in that they divided a single charge of continuous commercial gambling into several counts. The court further concluded that if the state did not intend each count to allege a continuous crime then they were duplicitous because each included more than one offense in a single count.

The defendant here contends that, as in George, the various counts of the complaint divide a single charge into several counts and therefore are multiplicitous. The assertion is directed separately at those counts relating to Operation Christmas Baskets (counts one, three and four) and separately at those counts relating to Operation Easter Baskets (counts two, five and six.)

First, it is obvious that the two counts for soliciting without registration are separate and distinct from those counts for unauthorized use of names. These are clearly separate crimes containing different elements.

The remaining question of multiplicity is whether the two pairs of counts for unauthorized use of names on each of the two dates are actually two single offenses. The only difference between counts three and four and between counts five and six is the person whose name was allegedly used. The test for multiplicity is whether each count requires proof of an additional fact which the other count or counts do not. United States v. Leo (E.D.Wis.1976), 406 F.Supp. 1174, 1178. This test is similar to the test this court has adopted to identify a violation of the right against double jeopardy. Anderson v. State (1936), 221 Wis. 78, 87, 265 N.W. 210. Applying the test to counts three and four and counts five and six, however, does not easily resolve this question, for upon each count the same elements of proof are required--that the defendant used any person's name and that the person had not authorized such use. In addition, the use of names in this case is shown by the same item of proof, the receipt.

We think that a better test in a situation such as is involved here is to ascertain the legislative intent. 1 Wright, Federal Practice and Procedure (1969), Criminal, pp. 312--13, sec. 142 (Rule 8). The real question is, therefore, 'what is the allowable unit of prosecution?' Bell v. United States (1955), 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. Did the legislature intend that the simultaneous unauthorized use of more than one person's name would constitute an offense for each name so used?

The case at bar is very similar to Bell, supra, where the Supreme Court held that the simultaneous transportation of two women in violation of the Mann Act could only constitute one offense where Congress had not defined its will as to the unit of prosecution. In Bell the Mann Act specified that it was a crime to transport in interstate commerce 'any' woman or girl for an immoral purpose. The statute in this case, sec. 440.41(10), Stats., makes it illegal to use without authorization the name of 'any' other person for soliciting. In Bell the crime was committed by one transportation, here the names were used on one sheet of paper, the receipt.

The general purpose of sec. 440.41 is to insure that funds solicited from the public for charitable purposes are not diverted to other uses. 60 Op.Atty.Gen. 454, 456 (1971). It logically follows, therefore, that the crime of unauthorized use of names is directed at protecting the public against being misled and not protecting the person whose name is used. This purpose does not require that liability for this crime be imposed for each individual person whose name is used, particularly where, as in this case, the unauthorized uses are simultaneously committed.

We conclude that counts three and four are multiplicitous as are counts five and six. Each of these pairs of counts should have been charged in one count of continuous unauthorized use of names.

While it appears that this same problem exists as to the five counts for unauthorized use of names in Case No. I--0140, the defendant has waived any right to review by failing to raise this issue as to the complaint in that case.

The defendant also objects to the counts charging solicitation of contribution without registration, counts one and two, on the ground of duplicity. This contention, however, is without merit in light of the fact that each of these counts charge the defendant with a continuous...