Bowden v. State, S

• Decision Date: 27 February 1973
• Docket Number: No. S,S
• Citation: 204 N.W.2d 464,57 Wis.2d 494
• Parties: John BOWDEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 81.
• Court: Wisconsin Supreme Court

Page 464

204 N.W.2d 464

57 Wis.2d 494

John BOWDEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 81.

Supreme Court of Wisconsin.

Feb. 27, 1973.

Gerald P. Boyle, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

The sole issue is whether there is sufficient credible evidence to sustain defendant's conviction of second-degree murder.

The standard of review this court applies to the question of the sufficiency of the evidence is set forth in Bautista v. State (1971), 53 Wis.2d 218, at page 223, 191 N.W.2d 725, at page 727. It is there stated:

'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.'

At about 1:22 P.M. on October 27, 1969, officers of the Milwaukee Police Department were summoned to the residence of eighty-nine year old Anna Pichl at 2223 West Cherry Street in Milwaukee, Wisconsin. The rear doors of the premises had been forcibly opened and the officers found Miss Pichl lying on her back in a doorway between a bedroom and the center room of the house. It appeared that she had suffered a severe beating. Although still alive, she was in an hysterical and incoherent state of mind. Subsequently, Miss Pichl died as the result of what was described by the Milwaukee County Medical Examiner's office as a severe beating about the head, trunk, arms and legs.

The state's case was built upon the testimony of Sammy Clark, Bruce Jones and Richard Earl who all testified to having been in the Pichl house at one time or another on the evening of October 24, 1969. Clark, age 21, who was granted immunity to testify, stated that he saw the defendant at about 9:30 P.M. on the 24th at the home of Richard Earl's mother, located at 1426 N. 21st Street. He further testified that the defendant asked him if he wanted some money and when Clark responded that he did, the defendant told Clark to follow him. After having been led to the victim's house, the two proceeded to literally break down the back door. Upon entry, the two confronted Miss Pichl in the dining room and when she attempted to scream, Clark testified that the defendant covered her mouth with his hand. Clark testified that he proceeded into the front room, looking for something to steal. A short time later, he heard sounds and upon investigation, found defendant striking the victim in the face with his fists. Clark then testified that he then went into another room and when he returned he found the defendant 'on top of the old lady' performing what appeared to be sexual intercourse. Clark testified that he pulled the defendant off and without speaking, left the house carrying a television set and returned to the Earl house. Clark testified that after hiding the T.V. he asked Bruce Jones to come with him and together the two returned to the Pichl residence, only to find the defendant on top of the victim again.

On direct examination, Bruce Jones, age 14, testified that upon finding the defendant still having relations with the victim, he and Clark pulled him back to the door but that the defendant broke away and as the victim started to get up, the defendant started hitting and kicking her in the head and back. Jones testified that he tried to help Miss Pichl up, but before he could, the defendant threw or shoved a cooking fork which 'stuck' in her back. Then he and Clark left without the defendant. Clark had earlier testified, on...